1797

ARMS ACT, 1878 AND ARMS RULES, 1924

Citation: 40 DLR (AD) 170,40 DLR 251, 40 (AD) 170,44 DLR 110,41 DLR 524, 4I DLR 524, 40 DLR 493,44 DLR 159,43 DLR 150

Case Year: 1878

Subject: ARMS

Delivery Date: 2018-01-08

Arms Act, 1878
 
Sections 16 & 18—
Appellant was neither given any notice of enquiry nor was he given any hearing before cancellation of arms—Enquiry undertaken on a sprawling private complaint made by the local upazila Chairman.
No emergency or any other compelling situation  preventing  giving of notice of enquiry lo the appellant—Nothing on record to show that any specific case was started against the appellant involving alleged misuse of revolver —Inquisitorial nature of enquiry aggravating the degree of unfairness—Principles of natural justice to be observed in proceedings affecting "the person or property or other right of parties concerned "—court adds a rider to the observance of the principle of natural justice that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice or hearing may not always invalidate the order passed thereunder if the security of the public peace is involved.
Sk. Ali Ahmed Vs. Secretary, Home Affairs 40 DLR (AD) 170.
 
Sections 16(1) and 19(1)—
The  Sub-Divisional Magistrate, Shariatpur had no jurisdiction whatsoever to cancel the license s of the guns in question under section 18(a) of the Arms Act or under any provision of the Arms Rules of 1924. As the license s of the guns in question were not cancelled by any legally competent authority such as the District Magistrate or by any authorised officer to whom he is subordinate as required under the provisions of Arms Act or the Arms rules, cancellation thereof by the SDO is illegal. Conviction under sections 16(1) and 19(1) of the Arms Act read with section 26 of the Special Powers Act is not sustainable in law.
Anawar  Hossains. Vs State  40 DLR 251.
 
Section 18—
Cancellation and suspension of license for arms—The necessity of recording reasons by the appropriate authority in writing for the cancellation of the license to be emphasized as a general rule—If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, its order stands a greater risk of being struck down. 
Sk. Ali Ahmed Vs. Secretary Home Affairs 40 (AD) 170.
 
Section 18—
Orders passed by the District Magistrate cancelling license s of guns of the petitioners without giving them any notice and opportunity of being heard and giving no reason for cancellation are illegal being violative of the principal of natural justice.
Rezaul Karim (Md) Vs. Ministry of Home Affairs 44 DLR 110.
 
Section 19A—
Uncorroborated testimony of an accomplice cannot be basis of conviction of an accused.
Kazi ibrahim Vs State 41 DLR 524.
 
Section 19A—
A person cannot be convicted on surmises and conjectures and from any analogical deduction.
Kazi Ibrahim VS. State 4I DLR 524.
 
Section 19(f)—
Appellants leading the police to place of occurrence and recovery of arms—Appellants cannot be held guilty of the charge of unauthorised possession of arms under section 19(f) of the Arms Act.
Abdul Khaleque Vs. State 40 DLR 493.
 
Section 19(f)—
Recovery of arms—culpability—mere knowledge of the accused that the arms were lying at the spot pointed out by him in the absence of evidence that he himself kept the same there or that he had exclusive possession over it, he cannot be made liable under section 19(f).
Abul Hashem Master Vs. State 44 DLR 159.
 
Arms Rules, 1924
 
Column 2 of the Table Schedule I as amended by notification No 896—Section II dated Dhaka the l9th November l973—The decision in this case having depended on findings of facts as to whether the seized arm were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the government, the extraordinary power to prevent the abuse of process of the court is not required to be exercised.
Hossain Mohammad Ershad Vs. State 43 DLR 150
1798

BURDEN OF PROOF

Citation: 6 BLD (AD) 174, 7BLD (AD) 1.Ref. Safdar Ali Vs. Crown 5 DLR (FC) 107, 9 BLD (AD) 110, 9 BLD (HCD)502, 11 BLD (HCD) 423, 12 BLD (HCD) 429

Subject: BURDEN OF PROOF

Delivery Date: 2018-07-08

BURDEN OF PROOF

 

Onus of proof — Special knowledge — If the maid-servant had died in any other circumstances other than by kicking it was within the special knowledge of accused Mokles Mridha on whom lay the onus to prove the circumstances — The conduct of the accused is highly in­criminating in that it is he who was the master of the maid-servant and it is in his house that she suddenly died, although she got no ailment prior to her death and it is he who hurriedly buried her — Evi­dence Act (1 of 1872) S 106 Abdul Hakim Vs. Mokles Mridha and others 6 BLD (AD) 174. 

Presumption of innocence of the ac­cused — Fundamental principle of a criminal trial — The accused shall be premused to be innocent and he is not re­quired to adduce any evidence to prove his innocence and the entire burden of proof of his guilt lies on the prosecution alone — Although law does not require a particular number of witnesses to prove a case, the rule of prudence requires cor­roboration of a solitary witness — Evi­dence Act (1 of 1872) Ss. 101 and 102 Muslimuddin and others Vs. The State. 7BLD (AD) 1.Ref. Safdar Ali Vs. Crown 5 DLR (FC) 107.

Burden of proving exceptions — The defence suggestions that the occurrence of murder took place in their land — The suggestion, if established, would entitle them to the right of private defence of person and property — The onus to establish this plea is upon the accused and the court shall presume the absence of any circumstances which bring their action within the exceptions of the offence of murder — To discharge this onus they did nothing except making a suggestion and led no evidence to show that the incident took place in their land — It was the duty of the defence to file as exibit the complaint petition of their counter-case or at least submit it as a part of their state­ment before the court — They simply re­lied upon the omission of the 1.0. to seize any alamat from the place of the occur­rence — In view of this position the Courts below rightly rejected the plea of the right of private defence — Evidence Act (1 of 1872) S 105 — Penal Code (XLV of 1860) S 300 — Code of Crimi­nal Procedure (V of 1898) S 342 Tayeb AH and others Vs. The State 9 BLD (AD) 110.

 

Burden of proof — Criminal Trial — The burden of establishing the guilt of the accused is always on the prosecution and it must prove every link in a chain of evi­dence as well as every ingredient of the offence beyond reasonable doubts — Evidence Act, (1 of 1872) S 101. Md Nasir alias Nasir Vs. The State 9 BLD (HCD)502.

 

Burden of proof — Defence has no duty to prove anything — It is the duty of the prosecution to prove its case beyond all reasonable doubts — Evidence Act (1 of 1872) Ss. 101 and 102 Kazi Ibrahim alias Ibrahim Kazi Vs. The State 11 BLD (HCD) 423

Burden of proof — It is always the burden of the prosecution to prove its case beyond reasonable doubts and this burden never shifts — The failure on the part of the defence to prove the defence p\ea does not react on the defence case and the prosecution must stand on its own legs — Evidence Act (1 of 1872) Ss. 101 and 102 Dabir Talukder Vs. The State 12 BLD (HCD) 429

1799

DRUGS (CONTROL) ORDINANCE, 1982

Citation: 42 DLR 493, 45 DLR 640.

Case Year: 1982

Subject: DRUGS

Delivery Date: 2018-01-13

 
Drugs (Control) Ordinance, 1982
[VIII of 1982]
 
Sections 8 and 16—
Interpretation of Statutes—The order of the appellants’ conviction by the Judge of Drug Court is based on his finding of “keeping in stock and exhibiting the medicine (banned one) in the shop”. Neither section 8 nor section 16 contains the quoted expression. Penal statute must be strictly construed and a court in order to punish an accused must not introduce any expression which has not been used by the makers of the law. The impugned order must therefore be struck down.
Dr. Golam Rahman Vs. State 42 DLR 493.
 
Section 23—
Instead of holding the trial before the Drug Court it was held before the wrong forum of Special Tribunal which is no trial in the eye of law. The order of conviction and sentence is therefore set aside and the case is sent back to the Drug Court for fresh cognizance and trial.
Shahidullah , 2. Jane Alam Vs. State 45 DLR 640.
1800

Constitution of Bangladesh (1972)

Citation: (1973) 25 DLR 335, (1978) 30 DLR 371, (1979) 31 DLR (AD) 1, (1976) 28 DLR 308, (1976) 28 DLR 30, (1975) 27 DLR 122, (1981) 33 DLR 230, (1974) 26 DLR 378, (1980) 32 DLR (AD) 110, (1981) 33 DLR 348, 1981 (33) DLR (AD) 154, (1981) 33 DLR (AD) 257, (1982) 3

Subject: Constitution of Bangladesh

Delivery Date: 2018-08-27

Constitution of Bangladesh (1972)

 

Arts.   10   &   llr-Fundamental   Rights-Liberty of citizens-Curtailment of it without —Arts.   26-33

justification-Court interferes.

 

A. T. Mridha Vs. The State, (1973) 25 DLR 335.

 

Arts. 26 and 47(2)--Some of the President Orders passed before the Constitution being open to the charge of inconsistency which the provisions of the Constitution under Art. 26 the law-makers in their wisdom saved them from such attack by enacting article 47(2) but this protection does not extend to action which is beyond the scope and extent of any such law.

 

A. T. Mridha Vs. The State, (1973) 25 DLR 335.

 

Article 27—Transfer of the case from the Special Tribunal to the M.L. Court is hit by article 27 of the Bangladesh Constitution, since right of appeal available under the Special Powers Act is denied when a case is tried by the M. L. Court.

 

Haji Joynal Abedin Vs. State (1978) 30 DLR 371.

 

--Transfer of the case without any guide-line to the. Martial Law Court violates the principles of equality before law,; there being no guide-line provided by M.L. Regulation 3(2).

 

Haji Joynal Abedin Vs. State (1978) 30 DLR 371.

 

-The Martial Law Court had purported to try an ordinary penal offence of murder punishable u/s. 302 BPC. The offence was not one of those military offences.

 

Haji Joynal Abedin Vs. State (1978) 30 DLR 371.

 

Arts. 31 & 32--Right to the protection of law and of right to life and liberty.

According to Article 31, to enjoy the protection of the law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of a person shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Any authority empowered under a detention law to make an order of detention has the duty to form its opinion as to the necessity of making such an order on the basis of some relevant materials, and the High Court is required to examine those

materials to see whether such materials have some rational probative value.

Since the Court is not competent to examine the adequacy or sufficiency of the grounds, which under the law is within jurisdiction of the detaining authority, it is not in a position to say that the good grounds, after excluding the bad ones, are sufficient for the satisfaction of the detaining authority. The burden having been upon the detaining authority to establish the legality of the order of detention the Court under the said circumstances cannot but declare that the detention cannot be sustained.

 

Abdul LatifMirza Vs. Bangladesh (1979) 31 DLR (AD) 1.

 

Arts.31 & 33(2) : It has been conceded by the learned Asstt. Attorney—General that there has been no order under President's Oder No. 8 of 1972 in this case authorising detention of the petitioner. On the perusaLof the records it is clear that there has been no valid order also under the Code of Criminal Procedure directing the detention of the petitioners in custody. It is clearly a violation of fundamental right as guaranteed under ArticlesSl and 33 (2) of the Constitution.

 

Abdur Rashid Talukder Vs. D.C. Barisal (1976) 28 DLR 308.

 

Articles  31,  33(2)  &  35(2)   :  None  ofthe    provisions    provided    in    the    three articles  observed:   Detention   in   violation of the  fundamental  rights  guaranteed  by the    Constitution—illegal.

 

According to Article 31 of the Constitution, no action detrimental to the liberty of a person can be taken except in accordance with law, and under article 33(3)(2) of the Constitution no person can be detained in custody without any valid order of the Magistrate. Moreover under Article 35(3) every person accused of a criminal offence shall have the right to a speedy and public trial by an independent •and impartial court or tribunal established by law. In this particular case, there has been a clear violation of the fundamental rights referred to above as guaranteed under the Constitution. It is stated by the learned Assistant Attorney-General that the case is pending before the District Scrutiny Committee for necessary report and recommendation but that cannot be taken as valid ground for depriving the petitioner of tte'r fundamental right of speedy trial guaranteed under the Constitution.

 

Belayet Hossain Vs. D.C. Barisal (1976) 28 DLR 305.

 

Art. 33(4)(5) : Deprivation of liberty of a citizen must be in accordance with the provisions of law and the Constitution—Detention must conform to the requirements laid down in Art. 33(4) and (5) (Special PowersAct, (X of 197$ S. 3(I)(b).

 

Mrs. Aruna Sen Vs. Govt. of Bangladesh (1975) 27 DLR 122.

 

Art. 35(2)--A person cannot be tried twice for the same offence. Article 35 (2) of the Constitution of Bangladesh says that'no person shall be prosecuted and punished for the same offence more than once. The same prohibition is also available in section 403 (I) of the Code of Criminal Procedure against the trial of any accused person twice on the self same charge.

 

Abdul Jabbar Vs. Govt. of Bangladesh (1981) 33 DLR 230.

 

Art. 35(3) : Authority's laxity in dealing with matters affecting citizen's liberty under the' fundamental right of the Constitution deplored.

 

The manner in which this case has been prosecuted shows extreme laxity on the part of the prosecution and as such the fundamental right of speedy trial as guaranteed under Article 35(3) of the Constitution has also been contravened.

 

Abdur R-ashid Talukder Vs. D.C. Barisal (1976) 28 DLR 308.

 

--Art. 37 : Right to participate in meetings. Nobody has a fundamental right to carry a weapon of offence. But every citizen has the right to assemble and to participate in public meetings and processions peacefully and without any arms.

 

Oali Ahad Vs. Govts of Bangladesh (1974) 26 DLR 378,

 

—Expression "restriction" in the article also includes "totalprohibition."

Having regard to the terms of Art. 37 of the Constitution, the word "restriction" as used therein may, however, be wide enough to include 'total prohibition' of a right for a temporary period if such total prohibition may be regarded, as reasonable for the purpose of public order.

 

Oali Ahad Vs. Govt. of Bangladesh (1974) 26 DLR 378,

 

Arts. 48 and 55--The first Proclamation dated 20.8.75 suspends Article 48(relating to election of the President) and Article 55 (relating to the Cabinet) and modified Article 148 and Form 1 of the 3rd Schedule (relating to President's oath of office); except these the Constitution of Bangladesh as it stood then was kept intact. Chief Justice of Bangladesh under Article 94 is the head of the Judiciary of the country.

 

State Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

Arts. 52 and 53-Under Article 52 President or the Vice-President is immune from court's proceeding only when they are actually id office-­Article 53 speaks of impeachment of the President only when he is in office. Regulation 11 of 1975-amendment of, by MLR 33/1975. Subsequent inclusion of the word "President" in Regulation 11 of 1975 not malafide.

 

Kh. Moshtaque Ahmed Vs. Govt. of Bangladesh (1981) 33 DLR 348.

 

-The President could be impeached during the tenure of the Presidentship. It does not speak of any impeachment after the President has vacated his office. In that view the incorporation of "President1 in Martial Law Regulation can not be said to be malafide on that count.

 

Kh. Moshtaque Ahmed Vs. Govt. of Bangladesh (1981) 33 DLR 348.

 

Art. 102—M.L. Court or Tribunal if acts without jurisdiction or is not properly constituted or acted malafide the Superior Court's jurisdiction under Article 102 may be exercised.

 

K h. Ehteshamuddin Ahmed Vs. Bangladesh and others. 1981 (33) DLR (AD) 154.

 

-The Article provides guaranteed remedy for enforcement of fundamental rights.

 

Govt. of Bangladesh Vs. Ahmed Nazir. (1981) 33 DLR (AD) 257.

 

Constitution--J-egitimacy of Government's action-Court's authority to interpret the Constitution. Written Constitution provides a standard by which the legitimacy of the Government's action is to be judged, and it is the function of the Court which is endowed with the authority of interpreting the Constitution.

 

Jamil Huq Vs. Bangladesh. (1982) 34 DLR (AD) 125.

 

-High Court Division's jurisdiction does not extend to interfere with Court Martial decision if the same not affected by coram non judice.

 

Jamil Haq Vs. Bangladesh (1982) 34 DLR (AD) 125.

 

-Authority's order assailed as passed malafide. In order to strike down an order passed by an excepted authority within the purview of sub-article (5) the facts constituting malafide must have corelation with jurisdiction, and be analogous to an order made quoram non judice. Neither in the subcontinent, nor, American or English courts have ordinarily interfered with the order of the military court.

 

Jamil Haq Vs. Bangladesh (1982) 34 DLR (AD) 125.

 

--High Court Division's writ jurisdiction conferred by the Constitution, if curtailed-Authority's order is immune when it is a supportable order. Curtailment of writ jurisdiction of the High Court Division with regard to matters coming under sub-article (5) of AK 102 of the Constitution has been made by the same instrument namely, the Constitution itself, and so we are only to see how far the language by once conferring the jurisdiction on the High Court Division has taken away or restricted its exercise with regard to the matter coming within the excepted part of the sub-article.

Any pfder or action of the excepted authority mentioned in sub-article (5) of Article 102 is immune from challenge in writ jurisdiction. Subject to the rule laid down by this Division in the case of Khondkar Ehtesnamuddin Ahmed alias Iqbal Vs. State, 33 DLR (AD) 154, in that the order is quoram non judice or malafide.

 

Jamil Huq Vs. Bangladesh. (1982) 34 DLR (AD) 125.

 

-Petition moved before the High Court under Article 102 by a relation of a convict-Maintainable.

 

Haji Joynal Abedin Vs. State (1978) 30 DLR 371.

 

—M.L.Court or Tribunal if acts without jurisdiction or is not properly constituted or acted malafide the Superior Court's jurisdiction under Article 102 may be exercised.

 

Khondkar Ehtashamuddin Vs. Bangladesh (1981) 33 DLR (AD) 154.

 

--The article provides guaranteed remedy for enforcement of fundamental rights. Article 102 provides a guaranteed remedy for the enforcement of the fundamental rights and this remedial right is itself made a fundamental right by being included in Part III of the Constitution. The Supreme Court is thus constituted, by the Constitution, the protector and guarantor of fundamental rights and so long as the fundamental rights specified under Part III remain in force it is the constitutional responsibility of the Supreme Court to protect them when the right conferred under clause (1) of Article 44 of the Constitution, is invoked.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1981) 33 DLR (AD) 257.

 

-Special Court trying accused under special law must observe fundamental principles of criminal law, disregard of which attracts Supreme Court's jurisdiction under Article 102.

 

Though the trial was held under a special law, the Courts below were not relieved of their duty to follow the fundamental principles of criminal trials which are that the accused shall be presumed to be innocent and it is the prosecution which shall prove the guilt of the accused beyond reasonable doubt. Non-observance of these basic principles is an error of law and this extra-ordinary jurisdiction under Article 102 of the Constitution has got power to see whether an order of conviction has been based on legal evidence which necessarily includes consideration of material points, probability and circumstances of each case.

 

Nasiruddin Sarker Vs. Member, Appellate Tribunal (1980) 32 DLR 1.

 

-High Court Division empowered to pass appropriate orders in case of deprivation of liberty of a person even though nature of writs not mentioned in the Constitution.

 

Govt. of Bangladesh Vs. AhmedNazir (1975) 27 DLR (Appl. Dim.) 41.

 

Art. 102(l)(a): Detenu remained in custody without a break between the first order u/s 3(l)(a) of the Special Powers Act which was revoked and followed immediately with a fresh order of detention under the same Act-Petition filed for relief under article 102(2)(a) of the Constitution on the occasion of the first order of detention is good enough to challenge the second order of detention and no fresh petition under article 102(1)(2) necessary.

 

Golam Kabir Vs. Govt. of Bangladesh (1975) 27 DLR 199.

 

Art. 102(2)(b): High Court Division's obligation to make objective assessment of the materials on which the detaining authority took its decision depriving a person of his liberty.

 

Mrs. Aruna Sen Vs. Govt. of Bangladesh (1975) 27 DLR 122.

 

-rCourt not ccacerned with the adequacy of the grounds nor it Substitutes its own discretion over that of the detaining authority. If they are relevant and supportable on material basis and not vague, apart ftf$m the question of malafide, Court will not interfere.

 

Mrs. Aruna Sen Vs. Govt, of Bangladesh (1975) 27 DLR 122.

 

—Of the grounds supplied, if some are irrelevant or non-existent, in that case detention order will not be upheld. Similarly, if, on the grounds supplied some are vague but some are not, in that case too the detention order can not be upheld having regards to articles 32 and 33(5) of the Constitution.

 

Mrs. Aruna Sen Vs. Govt. of Bangladesh (1975) 27 DLR 122.

 

Art. 102(2)(b)(i): Apart from the power of this Court under section 491 of the Code of Criminal Procedure to examine as to whether a person is being held in custody without any lawful authority or in unlawful manner, a duty has been cast upon this Court under clause (2)(b)(i) of Article 102 of the Constitution of the People's Republic of Bangladesh to examine the legality of the detention of a person.

 

Hence it becomes a duty of this Court to set a person at liberty who is being illegally detained. Since we'are satisfied in the present case that the initial arrest of the detenue by the Police was not in accordance with law, the detenue is entitled to be set at liberty on this ground alone.

 

Maimunnessa Vs. State (1974) 26 DLR 241.

 

-In relevant respects same language has been used in both the Constitutions and the meaning which has been attributed to Pak. Constitution can pan passu be attributed to Bangladesh Constitution,

 

Govt. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div) 41.

 

Article 102(b)(i). The term 'custody' in art. 102(b}(i) cannot be construed "executive custody" and to subject this term to any such qualification is wholly unwarranted.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div.) 41.

 

-When detention in custody is alleged to be without lawful authority or in unlawful manner-Court's authority to step in can be invoked.

 

Govt'. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div.) 41.

 

--An order granting bail during the pendency of the proceedings does not take away the jurisdiction of the Court to hear and dispose of the matter finally.-High Court can grant bail to detenue pending hearing the application challenging detention.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div.) 41.

 

--Jurisdiction in any matter when exists, the question whether in view of the question of security to the State that jurisdiction should be exercised is a relevant matter for the court concerned to keep in view.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div.) 41.

 

Fundamental rights—guaranteed under the Constitution—Supreme Court, protector and guarantor of such rights, shall discharge its obligation in case of invasion upon such rights.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1975) 27 DLR (App. Div.) 41.

 

Art. 102(2)(b)(l)--"Habeas Corpus" literally means "have his body'-further explained. The writ of habeas corpus ad subjiciendum which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. Such writ provides a powerful and effective safeguard for personal liberty against unwarranted and arbitrary encroachment hereupon.

 

The language of sub-clause (b)(l) of clause (2) of Article 102 of the Constitution is the same as that of sub-clause (b)(l) of clause (2) of Article 98 of the Constitution of 1962 of Pakistan and we have no reason to hold that 'the views expressed by the Full Bench of the "Lahore High Court and the Supreme Court of Pakistan in regard to the scope and authority of the powers conferred on the High Court under the aforesaid provision of Article 98 of the Constitution of 1962 should not hold good in relation to the identical provision in Article 102 of the Bangladesh Constitution.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1981) 33 DLR (AD) 257.

 

-After the initial order is passed and upon the return, the custody of the person detained passes under the control and direction of the Court and it remains so during the pendency of the proceedings. Therefore, an order granting bail during the pendency of the proceedings does not take away the jurisdiction of the Court to hear and dispose of the matter finally.

 

The High Court has undoubted jurisdiction to grant bail fodetenues pending the hearing of applications. Challenging the legality of the order of detention under sub-clause (b)(I) of clause (2) of Article .102 of the Constitution.

 

Govt. of Bangladesh Vs. Ahmed Nazir (1981) 33 DLR (AD) 257.

 

Art. 103(2)(b): What amounts to reduction of sentence as distinguished from 'sentencing a person to transportation for life' within the meaning of article 103(2)(b) of the Constitution in which case no appeal lies from a decision of the High Court Division.

 

Moyna Mia Vs. State (1975)' 27 DLR (AD) 120.

 

--Expression 'sentenced to death or transportation for life in article 103(2)(b) covers cases u/s. 439, Cr.P.(Code whereby High Court Division enhances a Sentence passed by the trial court to a sentence of death or transportation for life.

 

Moyna Mia Vs. State (1975) 27 DLR (AD)120.

 

Arts.    103(2)(a)    and    3    and    10.-- Constitution-Embodiment of people's will is sovereign.

 

Jamil Huq Vs. Bangladesh (1982) 34 DLR (AD) 125.

 

Article 104.The expressions "doing complete justice" as occurs in Article 104 of the Constitution of Bangladesh are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed.

 

Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder, (1985) 37 DLR (AD) 145.

 

Article 105.Appellate Division of the Supreme Court of Bangladesh has power to review its own judgment, acting on its own.

 

Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder. (1985) 37 DLR (AD) 145.

 

Article 109.Special Tribunal created under the Special Powers Act is subordinate to the High Court Division and subject to its superintendence and control.

 

Baidyanath Kar Vs. State, (1984) 36 DLR 240.

—Under clause 4(3) of the Schedule to the Martial Law Proclamation as amended by P.O. 1 of 1982, Supreme Court or its Division can exercise the power of superintendence and control over the subordinate courts (M.L.P. amended by P.O. 1982. Clause 4(3); of the Schedule),

 

Baidyanath Kar Vs. State, (1984) 36 DLR 240.

 

Art. 109Court Martial set up under Army Act not subordinate to the High Court Division's Jurisdiction. (1982) 34 DLR (AD) 125.

 

-Art. 109 of the Constitution of Bangladesh and P.O. 50 of 1972- No inconsistency or contradiction between the two. "Hie two refer to two different functions and hence no inconsistency-Provision of art. 47 (2) not called for and thus the superintending power of the Constitution comes into play.

 

AT. Mridha Vs. State (1973) 25 DLR 335.

 

--Art. 109. High Court's superintending power-Guaranteed by Art. 109.Power of superintendence and control envisaged in article 109 shall be exercised in the interest of justice which involves a duty on the part of the 'High Court Division to keep all Courts and tribunals subordinate to it within the bounds of their authority. This means the High Court can interfere when necessary in the interest of justice.

 

A. T. Mridha Vs. State (1973) 25 DLR 335.

 

--Supreme Court's power of superintendence—Dictum of the Supreme Court of India recalled.

 

It is interesting to note that though the power of superintendence has been conferred on the High Court, the decision of the Supreme Court of India in the case of Baldeo Singh, A.I.R. 1957 (S.C.) 612, is an authority for the proposition that the Supreme Court in our country the Appellate Division can also exercise the power of superintendence in the appropriate circumstances.

 

A. T. Mridha Vs. State (1973) 25 DLR 335.

 

—Pakistan, Supreme Court's decision in the case of Hari Mia, 11 DLR (S.C) 368 wrong-High Court's decision in that case correct, though manner of approach wrong—This court is in complete agreement with High Court's decision.

 

A.T. Mridha Vs. State (1973) 25 DLR 335.

 

-Our Constitution conceives rule of law as guiding rule for the governance of the country.

 

AT. Mridha Vs. State (1973) 25 DLR 335.

 

Art. 109.--High Court Division can have resort to its jurisdiction under Article 109 of the Constitution as a distinct forum. The High Court Division in exercising such jurisdiction as contemplated under Article 109 of the Constitution may refer to the inherent residuary revisional jurisdiction of the High Court Division short of its appellate powers under the normal procedural law, and even without such reference can also directly resort to the jurisdiction conferred upon it under Article 109 of the Constitution, as a distinct forum for a separate proceeding thereunder, being quite separate, distinct and independent from the extraordinary prerogative jurisdiction of the High Court Division under Article 102 of the Constitution.

 

Shahar AH Vs. A.R Chowdhury (1980) 32 DLR 142.

 

-As against the decision of Appellate Tribunal set up u/s 30 of the S.P. Act an aggrieved party may move the High Court Division in exercise of its power of superintendence and control under Article 109.

 

Shahar All Vs. A.R.Chowdhury (1980) 32 DLR 142.

 

-Power of superintendence and control by the High Court Division under Article 109 of the Constitution includes judicial superintendence and control. Therefore, as against any judgment of the Special Tribunal under S.P;Act. a party can move for relief in the High Court Division.

 

Shahar All Vs. AJt,Chowdhury (1980) 32 DLR 142.

 

—Under Article 109 of the Constitution of Bangladesh the supervisory and superintending authority of the High Court Division extend to the Courts subordinate thereto.

 

Shahar All AR.Chowdhury (1980) 32 DLR 142.

 

Arts.109 and 114~Under Article 103 (4) of the Constitution, the Appellate Division of the Supreme Court has no jurisdiction over any judgment, order of the Appellate Tribunal which for all practical purposes exercises the function of the High Court Division in that regard. This is in conflict with and violative of Article 114 of the Constitution and thus negatives the inherent pervisory and superintendence of the High Court Division of the Supreme Court under Article 109. Thus being so, creation of an Appellate Court u/s 30 of the S.P. Act is ultra vires of the Constitution.

 

Shahar All Vs. A.R.Chowdhury (1980) 32 DLR 14.2.

Decision of the Appellate Tribunal under the S.P. Act is subject to the revision under normal procedural law before the High Court Division as also directly under Article 109 read with Article 114.

--Prosecution and trial of the petitioners under the Special Powers Act can proceed before a Special tribunal or an Additional Special Tribunal and therefrom also before the Appellate Tribunal, but any judgement, order or sentence of any such Appellate Tribunal shall be subject to a revision short of an appeal under the normal procedural law before the High Court Division and in any event even directly under Article 109 read with Article 114 of the Constitution of Bangladesh.

 

Shahar All Vs. A. R. Chowdhury (1980) 32 DLR 142.

 

Art. 110.--Constitution embodiment of people's will. A reference to Article. 110 of the Bangladesh Constitution read with Article 103(2) (a) and (3) indicates that the Constitution as construed by the Court, is the embodiment of the will of the people which is sovereign.

 

Jamil Haq Vs. Bangladesh (1982) 34 DLR (AD) 125.

 

Art. lie-Bangladesh Constitution as per Article 114 thereof does not contemplate the establishment of any Court of law including any judicial tribunal exercising the function of a court of law which is not otherwise subordinate to the Supreme Court.

 

Article 109 of the Constitution of Bangladesh has conferred upon the High Court Division of the Supreme Court such superintending authority over the courts below whereunder the High Court Division can make judicial interference with any judgment and order of any other Court of law including a judicial tribunal exercising the functions of a court of law, such as the Appellate Tribunal under the Special Powers Act, by way of a revision short of an appeal to rectify any patent absence or excess or erroneous assumption of jurisdiction, or any grave error of law apparent on the face of the record which might cause serious miscarriage of justice.

 

Shahar All Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

Art.   114   read   with   Art.   109.—The Appellate Tribunal set up u/s 30 of the Special Powers Act must be deemed to be a Court subordinate to the Supreme Court and subject to the superintendence and supervision of the High Court Division of the Supreme Court.

 

Any judicial tribunal purely and exclusively exercising the functions and powers of a Court of Law does not cease to remain as a court simply because of its description as a Tribunal. Appellate Tribunal under the amended version of section 30 of the Special Powers Act being purely a judicial tribunal exclusively exercising the functions of a Court of Law in its appellate jurisdiction under the Code of Criminal Procedure, is a Court subordinate to the-Supreme Court under Article 114 of the Constitution and is subject to the superintendence and control of the High Court Division of the Supreme Court under Article 109 of the Constitution.

 

Shahar AH Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

Art. 135."Servant--Gt)vt. servant-­Serving under the Co-operative Land Mortgage Bank is not a part of the Government—Employees of the Land Mortgage Bank are not Government servants. The Bank itself has its separate entity, being independent of the Government.

 

Bangladesh Vs. Md. Alauddin, (1986) 38 DLR (AD) 81.

 

—Managing Committee adopted the Government Civil Service Rules for its convenience—Such adoption does not make the Rules as having statutory force.

 

Bangladesh Vs. Md. Alauddin, (1986) 38 DLR (AD) 81.

 

—Government Civil Service Rules adopted by a Co-operative Bank for guidance of the Bank-such rules by their adoption by the Co-operative Bank do not extend the protection given to a Government servant.

 

Bangladesh Vs. Md. Alauddin, (1986) 38 DLR (AD) 81.

 

—Benefits enjoyed by Government servants made available to the Bank's employees-They do not thereby become Govt. servants.

 

Bangladesh Vs. Md. Alauddin, (1986) 38 DLR (AD) 81.

 

Art.143—Recovered unclaimed gold escheats to the Republic.

Gold in respect of which the trial was held, was disclaimed by the accused and finding was that it was not recovered from his possession. It, thus being unclaimed, escheats to the Government under Article 145 of the Constitution.

 

Gopinath Ghose Vs. State (1980) 32 DLR (AD) 177.

 

Art. 152 read with Special Powers Act (XIV of 1974) Sec. 2(f): Power of criticism allowed by the Constitution though now regulated under the Special Powers Act in regard to prejudicial acts.

Freedom of expression of opinion (criticising a party in power) that was given by the Constitution was subject to law and the Special Powers Act circumscribed this freedom by providing that in the case of prejudicial act the Government will have the power to detain a person is order to prevent him from doing any prejudicial act. Criticism of an ideology, namely, Mujibbad, cannot be a prejudicial act and accusation that freedom of the press had been circumscribed is a criticism which can be levelled in any democratic state, if political activities are permitted. The burden of the entire grounds is that the detenu was a critic of the then ruling party and its creed and its activities including the failure of its leaders to fulfil the election pledges.

 

The detenu was only directing his criticism against the then Government as it is expected from the position of the political party and the law allowed this freedom of criticism and the detenu in the present case was entitled by law to make this sort of criticism of the then Government.

 

Md. Sekander Hossain Vs. Govt. of Bangladesh (1977) 29 DLR 15.

 

Art. 152(1)--All Tribunals are not Courts1 but all Courts are Tribunals. A Tribunal having all the trappings of a Court for all purposes is a Court within the meaning thereof under Article 152 (1) of the Constitution.

 

Sahar All Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

Arts. 152(1), 114-A Court according to Art. 152(1) of the Constitution, is a court of law-under section 6, Cr.P. Code, Courts of Session(that is Sessions Judge, Addl. and Asst. Sessions Judge) and of the Magistrates (1st, 2nd. and 3rd classes) are criminal Courts-under sec. 26(2), Special Powers Act, every Sessions Judge, Addl. Sessions Judge and Asstt. Sessions Judge shall be Special Tribunals for trial of offences under S.P. Act. Consequently a Special Tribunal being a Court of law is a Court as defined in Art. 152 (1) of the Constitution. This being so, these Courts (being subordinate to the Supreme Court) are amenable to the superintendence and control of the Supreme Court's High Court Division under Art. 114.

 

A Special Tribunal under the Special Powers Act is not only a Criminal Court as classified under section 6 of the Code but is also a Court meaning a Court of law as defined in Article 152(1) of the Constitution. Such definition being applicable to the reference of Court made in Article 1.14 read with Article 109 of the Constitution. The Court of Session and first class Magistracy having constituted the Special Tribunals and Additional Special Tribunals are already under the superintendence and control of the High Court Division of the Supreme Court subordinate thereto, both under the provisions of the Code of Criminal Procedure and the Constitution.

 

Before the amendment of section 30 of the Special Power$Act appeal against the decision of the Special Tribunal lay to the High Court Division but after amendment a separate Appellate Tribunal has been set up to hear appeals against Special Tribunal against whose decision no further appeal or revision lay to High Court, something unprecedented in legal history.

 

Considering the aforesaid provisions of the amended version of section 30 of the Special Powers Act, the High Court Division was the direct Appellate Court over a Special Tribunal, whereas in the amended version the High Court Division has been substituted by an Appellate Tribunal constituted by a person who is or can be a judge of the Supreme Court, exercising all the powers and following the same procedure as that of the High Court Division under the Code of Criminal Procedure, but keeping such Court outside the purview and pale of the Supreme Court as such. Any judgment or sentence of the Appellate Tribunal shall not only be final but no Court including the Appellate Division of the Supreme Court shall have any such normal power to revise any such appellate judgement and sentence even when it involves the confirmation of a death sentence. This is an unprecedented innovation in the history of common law countries. Shahar Alt Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

Fourth Schedule, Article 18-» Proclamation of April, 1979.

Clause (h)

 

Withdrawal of Martial Law or revocation of Proclamations of August 1975, etc. does not mean that they are open to examination by the High Court Division in its writ jurisdiction. Article 18 of the Fourth Schedule to the Constitution and. Clause (h) of the proclamation of April 6, 1979 have no scope for making any argument that on account of withdrawal of the Martial Law and revocation of the Proclamations of August 20, 1975, and November 8, 1975, and the Third Proclamation of November 29,1976, together with all other proclamations and orders amending or supplementing them: and on the repeal of all Martial Law Regulations and Martial Law Orders made in pursuance of the said Proclamations by the Proclamation of April -6, 1979, the order of the CMLA, the proceedings before the Martial Law Court, the order of the reviewing authority and the order of the confirming authority is now open to examination by the High Court Division in its writ jurisdiction.

 

Clause (h)—of the Proclamation of April 6, 1979 provides total protection from being questioned before any court including the Supreme Court.

 

Ehtashamuddin Vs. Bangladesh (1981) 33 DLR (AD) 154.

 

Fourth Schedule, Para 3A(2)(3)--Mere fact that the accused when he committed the alleged offence was Deputy Chief Martial Law Administratqr will not exempt him from prosecution under sub-paras (2) and (3) of Para 3 A of the 4th Schedule of the Constitution.

 

M.G. Towab Vs. State. (1982) 34 DLR 390.

 

1801

Constitution of Pakistan, 1962

Citation: (1966} 18 DLR (SC) 214, (1969)21 DLR(WP)90, (1966) 18 DLR (SC) 214, (1985) 37'DLR 200, (1969) 21 DLR (SC) 297, ((1969) 21 DLR (SC) 59, (1966) 18 DLR (SC) 503, (1967) 19 DLR (SC) 453, (1969) 21 DLR (SC) 104, 1965) 17 DLR (SC) 209, ((1965)17 DLR (WP) 9, 1

Subject: Constitution of Pakistan

Delivery Date: 2018-08-27

Constitution of Pakistan,    1962

 

Art.2-Justification of keeping a person in prison on the basis of law which 'was enacted subsequent to such imprisonment is legitimate with effect from the date on which the law came into force.

 

Govt. of E.Pak. Vs. Rowshan Bijaya (1966} 18 DLR (SC) 214.

 

Every  citizen  and  every  other  person for  the  time  being  in  Pakistan  is entitled to the  protection  of law and the right of j being treated in accordance with law.

The petitioner, a Spanish national, while visiting Pakistan was wanted by the Spanish Government. On the request of the Interpol , the petitioner was arrested and detained pending repatriation. Subsequently, the Spanish Government made a request for his extradition and requested the Government of Pakistan to retain him in custody till necessary arrangements could be made. So the petitioner was lodged in the jail. In the meantime, the petitioner presented a petition under sections 491 and 561-A of Cr.P.C. before the High Court. It was contended by the respondent that since the extradition order had already been passed by the Government of Pakistan, as a result of which the custody of the petitioner had passed on to the Spanish Embassy, the High Court had no jurisdiction to deal with the matter.

 

Held: That the petitioner, though an alien being a Spanish national has been and is still within the territory of Pakistan and as such under Art. 2 would be equally entitled to the protection of law and the right of being treated in accordance with law.

 

Jose Gonzalo De Garcia De Balseras Vs. State (1969)21 DLR(WP)90.

 

Arts. 2(a) and 6 (l}-Section 41  of East) Pak. Public Safety Ord., 1958 not providing for ] communicating to the detenue the grounds of detention and for his representation against the detention is ultra vires of para (5) of Fundamental Right 2 and Art. 6(8) of the Constitution of Pakistan.

 

Rowshan Bijaya Vs. Govt. of E. Pak. (1965)17DLR(Dac)l.

 

Art. 6-After the Constitution has come into force the laws which were inconsistent with the Fundamental Rights, cannot be treated as good and effectual laws.

 

Govt. of E. Pak. Vs. Mrs. Rowshan Bijaya (1966) 18 DLR (SC) 214.

 

--Fundamental Rights para 2(l)(2)-Not only was the action taken in the purported exercise of section 41 of the East Pakistan Ordinance of 1958 bad from its inception but that the said section was itself void to the extent that it made provisions inconsistent with sub-paragraphs (1) and (2) of paragraph 2 of (he Fundamental Rights, as declared by Article 6 of the Constitution (First Amendment) Act, 1963.

 

Govt. of E. Pak. Vs. Mrs. Rowshan Bijaya (1966) 18 DLR (SC) 214.

 

-Fundamental Right No. 5Freedom of movement-Its main object is to remove all territorial barriers within the country for the citizens of Pakistan (Per M. Akram, J.).

 

Syed Abul A'ala Maududi Vs. The State Bank of Pakistan (1970) 22 DLR (WP) 57.

 

Fundamental Rights Nos. 1 and 5-Liberty and freedom of movement-The two freedoms, although akin in certain respects, are distinct and separate- While Fundamental Right No. 5 affords protection to citizens of Pakistan, Fundamental Right No. 1 is in the nature of a safeguard for the personal liberty in the people. (Per M. Akram, J.).

 

Syed Abul A'ala Maududi Vs. The State Bank of Pakistan (1970) 22 DLR (WP) 57.

 

-Fundamental Right No. 1Connotation of term "liberty"~Freedom of locomotion is part of liberty of people-Personal liberty includes enjoyment of undeniable right vested in him to go abroad and to return to his country again~But such liberty is subject to regulation and control by valid law in force in the country (Per M. Akram, J.).

 

Syed Abul A'ala Maududi Vs. The State Bank of Pakistan (1970) 22 DLR (WP) 57.

 

-Fundamental Right No. 1It is designed to protect loss of life and personal liberty, that is to say, freedom from restraint or incarceration. (Per M. Gul, J.)

 

Syed Abul A'ala Maududi Vs. The State Bank of Pakistan (1970) 22 DLR (WP) 57.

 

Art.6--Provision of section 16 of the Criminal Law (Amendment) Act is violative of the Fundamental Right.

 

Abul-A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR {SC) 209.

 

--The word void in Art. 6(1) did not intend to repeal the law that has already been validly made but merely render it inoperative in future. (HJRahman, J., Para 186)

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

—Acts done before the introduction of Fundamental Right cannot be re-opened except where the Right is found to be still subsisting, (para 187)

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

-Declaration made under section 16 of Criminal Law Amendment Act declaring the Jamaat-i-Islam as unlawful association cannot be treated as past and closed transaction but one which is to continue to have effect indefinitely. (S.A. Rahman and H. Rahman, JJ. para 188, 69 and 70)

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC)209.

 

Art. 6(7)Read with section 16 of Criminal Law Amendment Act (XIV of 1908) : The' restriction imposed on the Jamaat-i-Islam affecting its right to form an association is violative of the Fundamental Right. (Per S.A. Rahman, J., Para 167).

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

Art. 6 Para 7Freedom of association cannot be denied on the opinions formed by the Govt. (Per Cornelius, C.J., Para 30a).

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

-In order to ascertain whether the executive order is violative of the right of freedom of association the Court has to subject those orders to a full judicial review. (Per Cornelius, CJ., para 45a,45b,and46).

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

--Restriction imposed by Act XIV of 1908 not reasonable and violative of the fundamental right.

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

—Transaction not "past and closed". The next point for consideration is whether the notification impugned in this case can be regarded as a transaction past and closed.

 

Held: The notification in question, would even now stand ia the way of formation of a political party in exercise of Fundamental Right No. 7 guaranteed by the Constitution. Its effect is continuing from day to day and consequently must be declared to be void.

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC) 209.

 

-Freedom of association : Whether the executive order is violalive of the right of freedom of association should be subjected to a full judicial review before order is either set aside or upheld. It is within the power of the Court to subject an executive order to judicial review. Even had the order been made giving an opportunity for hearing and for production of evidence, the Court would be obliged to ascertain whether the decision of the executive authority was based on any evidence and whether the evidence was enough to establish reasonable cause.

 

The most appropriate method of judicial review would be, for the Court while not interfering ad interim with the orders, to conduct a hearing and to receive evidence and thereafter decide whether the restriction imposed was a reasonable one. The executive order will be supported if the cause shown was 'reasonable' even though in the opinion of the Court it may not be sufficient.

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC)' 209.

Art. 6(ll)--Reasonable restriction cannot amount to complete denial of the right of association for all time to come, (para 192)

 

Abul A'la Moudoodi Vs. Govt. of West Pakistan, (1965) 17 DLR (SC)209.

 

Art.6 Para 15.--No discrimination between persons convicted under Item 8(a) and those convicted under Item 8(b) of the Sea Customs Act-­Classification of accused persons-Not hit by para 15 of Fundamental Rights of the Constitution of Pakistan 1962.

 

Md. Akbar Vs. State,(1965)17 DLR (WP) 9.

 

Arts. 6, 98(2)(c) and 133 (3)--Power of judicial review by the Superior Court extends to examine the constitutionality of a piece of law. After the Constitution has come into force the laws which were inconsistent with the Fundamental Rights, cannot be treated as good and effectual laws.

 

The power of judicial review, under the Constitution, extends not only to examining the constitutionality of the action taken under a law but also the constitutionality of the law itself, by the incorporation of Article 6 and the addition of clause (3) to Article 133 and paragraph (c) to clause (2) of Article 98 by the Amendment of 1963. In enforcing that right it is a clear duty -of the High Court to decide also as to whether the law under which the fundamental right of a subject is sought to be infringed is a Law which should .prevail notwithstanding the Constitution.

 

Govt. of E. Pak. Vs. Mrs. Rowshan Bijaya (1966) is DLR (SC) 214

 

Art. 29--Order of the Commander in-Chief being legalised by the subsequent Ordinance, the order itself remains lawful and it became a transaction past and closed so that lapse of the Ordinance did not affect the legality of the order which remains in force.

 

Mir Ahmed Nawaz Khyn Vs. Superintendent (1966) 18 DLR (SC) 338.

 

Art.30 read with rule 32--Proclamation of emergency being relatable to matters covered by Art. 30(l)(a), any action taken under rule 32 of the Defence of Pakistan Rules, 1965 framed under the Defence of Pakistan Ordinance, 1965 must be relatable to Art. 30(l)(a), that is, must be related to threat of war. Rezaul Malik on behalf of detenue.

 

Sk. Majibur Rahman Vs. Govt. of E. Pak. (1967) 19 DLR 829.

 

Art. 58-No enlargement of right of appeal under Article 58. The wording of the new Art. 58 stews a considerable1 variation frorh that of the 1956 Constitution but the mere 'Omission of certain words or of a certain mode of specilicaiiotf adopted in the earlier Constitution can not be construed 'to signify enlargement of the right of appeal. The proper method of interpretation of the new provision is by a reference to the relevant provisions in the Criminal Procedure Code.'

 

Afrf. Rafique Vs.:Siate; (1963) 15 DLR (SC) 219.                 

 

-Death sentence confirmed ;by the High Court-No appeal as of right to the Supreme Court.

In its meaning Art. 58 of the Constitution does not enable an appeal as Of right from judgment of the 'High Court; confirming death sentence passed by a Sessions Court, Md. Rafique Vs. Stale, (1963) IS DLR (SE) 219. iO Ij 316] gi .

 

ArL58(2)(b)--If !a life sentence is imposed by Hie High; Court for the first time on appeal, the accused has a right of appeal to the Supreme Court.

 

Muhammad. Shaft '& ors. Vs. The Stale; (1967) 19 DLR (SC) 216.

 

1:. (majority): .No (appeal lies to the Supreme Court as of right under Article 58(2)(b) when High Court alters a sentence of death, to transportation for life either under section 376 or section 423 Gr.P.C. no bi V...- i >iid f 3wm £ asv When a, sentence; of death is torn muted to transportation for life the case is one of reduction of sentence and not one of the High Court sentencing lh&.accused;to;transportation for life, -A case of commutation of a sentence of death to sentence for transportation for life docs not therefore, On titles the convict to file an appeal as of right,to the!S upreme Court uqder any: circumstances:

 

Rashid Ahmed Vs. fhe:Siate41969)2LDlM(SC)297

 

(Majority view) : Words P<High Court has sentenced a person" in Article 5#(2i)(h;), hawe • HiOt been! used in the technical sense ibf 'passiwg a i sentence'but

have:   biee;n     used oin;;th«P  ordinary grammatica  seas.e of   The words /'has!-sentenced"? in Article 58(2)(b) have not been used in the technical sense of 'passing"', a sentence under the Criminal Procedure Code.

 

These words in Article 58(2)(b) are; equally capable of bearing the' ordinary grammatical meaning of imposing a sentence.

 

Rashid Ahftieit Vs. The State] (1969) 21 DLR (SC) 297.

 

(Hamoodur Rahman, J.) : Appeal lies to Supreme. Court 35 of right :under Article 58(2)(b) when High Court confirms a death sentence or enhances a sentences. to\ d«athv'Qi-transportation for life, or convicts an accused person after acquittal on a charge of murder under section 304, Part I: or imposes and passes a sentence of transportation for life either under section 376 or section 423 Criminal Procedure Code.

The words "has sentenced", occurring in Art. 58(2)(b) should be given their natural and ordinary grammatical meaning and read them in a literal sense, as being applicable to any case in which, whether under sec, 376 or under sec; 423 Criminal Procedure Code, the High Court has itself irnposed a sentence of death or transportation. Such' a sense would remove the anomalies by extending the right of appeal even to cases of confirmation of sentence of death under section 376 Criminal Procedure Code,

 

enhancement of :a sentence to death or transportation for life and conviction of an accused person after acquittal on a charge of murder, under sectior) 304; Part I, and the imposition of a sentence of transportation for life either under section 376 or under section 423 Criminar Procedure Code, such a literal" Construction : would only include cases specified in clauses (a) and (b) of Article 159.

 

Rashid Ahmed Vs. The State, (1969) 21 DLR (SC) 297.

 

High Court imposes a sentence when it does not moderate, stiffen or approve an existing sentence.

(Q. Ahmed J,) : It would be disregarding'the differences of the ordinary words of the language to treat reduction, enhancenientv confirmation artd affirmation of sentences by the High Court as senienees imposed by the High Court itself/ The High Court can be said to have itself imposed' a-sentence only when it does not moderate, stiffen tit1 approve an existing sentence; for instance, when it tries a case and sentences the accused person, or sentences a person who was acquitted or sentences an accused person, on a submission of a case to it, under section 307 CrP.C.

 

Rashid Ahmed Vs. The State, (1969) 21 DLR (SC) 297.

 

—(QAhmadJ): Confirmation, reduction and enhancement of sentence by High Court, different from High Court sentencing a person to death or transportation for life.

 

Rashid Ahmed Vs. The State, (1969) 21 DLR (SC) 297.

 

Art.58(2)(b)(c)--Objective of Article 58(2)(b) is to provide an appeal against punishment awarded by High Court itself.

 

(Qadeeruddin Ahmed, J. agreeing with Sattar, J.): Providing one appeal from punishments given by the High Court itself is in essence the objective of Article 58(2)(b) & (c). It would, therefore, be erroneous to determine its extent by taking into consideration the increase or decrease of this Court's jurisdiction in other fields.

 

Rashid Ahmed Vs. The State, (1969) 21 DLR (SC) 297.

 

Art. 58(3)--An appeal by special leave for bail-not an appeal like ordinary appeals-Should be allowed only on exceptional ground.

 

Allah Diwaya Vs. The State (1969) 21 DLR (SC) 59.

 

—High Court refusing bail in proper exercise of its jurisdiction-Such matters do not attract application of

Artcle 58(3). Whatever unusual or exceptional reason may conceivably justify grant of leave under Art. 53(3) of the Constitution in bail matters, such reasons cannot include a grievance that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree. Such a grievance cannot be said to be special reason attracting the application of Art. 58(3) of the Constitution which is meant to secure this Court against being taken to be an ordinary court of appeal.

 

Allah Diwaya Vs. The State (1969) 21 DLR (SC) 59.

 

Art.61-Criminal appeal filed out of time-­power of the Supreme Court, in ensuring justice, includes power to issue suo motu notice to such persons who have been improperly acquitted by the High Court.

 

State Vs. Muhammad Nawaz (1966) 18 DLR (SC) 503.

 

-There is a good deal of force in the contention that the persons who had secured acquittal from the High Court should not be put in jeopardy of their lives by a petition for leave to appeal filed out of time. The State's petition, therefore, is liable to be rejected on the ground.

 

State Vs. Muhammad Nawaz (1966) 18 DLR (SC) 503.

 

-The Supreme Court has power to issue such directions, orders or decrees as may be necessary for doing complete justice in any cause or matter pending before it (vide Article 61 of the Constitution). The error being patent on the record in this case, this Court could have suo motu issued notices to those of the respondents who had secured an acquittal from the High Court as the result of the above mentioned error.

 

State Vs. Muhammad Nawaz (1966) 18 DLR (SC) 503.

 

Criminal appeal: The Supreme Court on a consideration of the entire evidence found that the "whole prosecution case was streaked with falsehood" and that the case against the appellant was a mere fabrication and on that view acquitted ihe appellant.

 

MuhmmadHanifVs. The State (1967) 19 DLR (SC) 453.

 

Art.61.(l)--Power of Supreme Court under Art. 61(1) though very wide does not mean going beyond what the High Court can do under the law-­Wrongful dismissal of a revisional application against acquittal by the High Court-Only course open to the Supreme Court, to order retrial.

 

Md. Ramzan Vs. Nasir Hussain (1969) 21 DLR (SC) 104.

 

Art. 63r-Conflict between decisions of Single Bench or Division Bench of High Court on one hand and that of Supreme Court on the Other-­Decision of Supreme Court to prevail-Not necessary for constituting larger Bench of High Court to resolve conflict.

 

Janab Gul Vs. Aslam Khan (1966) 18 (WP) 45.

 

ArtcEc 63--Binding forte of Supreme Court's judgments-Federal Court's (and Supreme Court) decisions

 

-Art. RO-Under [he present Constitution, the Provincial Government is in facl ihc Governor of (he Fruvince, acting cither directly or through officers subordinate to himr Gflvi. ofE. Pok. Vs Kttwstian Bijnya (1966) IS DLR ISC) 214.

 

Art.9S- if  ccrliflrari    when   will issue; A writ for cerlior^ri will issue only in ease of want of jurisdiction or extess of jurisdiction and also in cases of illegally not Durable under section 537 of the Code of Criminal Procedure.

 

Kazi Abtlui Malta Vs. Sub-Divisional Magistrate {196$) 20 DUt 93.

 

challenging deletion order nf a should be miived by dcicnu's rcJaUons or where ihcrc is no relation avjifgblet by person who is close lo Ihc detenu and blown alJ fiicls and cEreumslanOcfi of llic case. ahm!

 

Huq Vs. Prov. of E. Pak. fJJMS; 20 DLR 694.

 

—After promulgation of the Provisional Constitution Order the Uigh Court lias no pc ver to tall in question order (if Military Court--CoDSfiiulion uliru^nted

The provisions of a Constilulion while in operation arc Ehe supreme Jaws of [he land1 yn;l staiul on [he Kighesi pedcsral. Bui ihc position is different whcuaCon&[i[ulionii,abrogyjeJa£id some provisions Uiereof are kept in operation by sonic oihcr instilment. By paraErflpii 4(1) of the FtQclamalinn lite Corisiiuition of 1^6? has been abrogated and by paragraph 5 (hereof opcraaon "subject [o rc^ulaiions or orders made by the Chief M-niuil Law r". So. ihe relumed provisions of the Constitution of 1962. have now assumed the sia[us Of suborJiiijie (egi£laliun like any other Jaw,

 

Hence whenever any provision of [he Constitution of 1^62 comes in conflict with any Martial Law Regulation or Older, [he latter shall pievaiL

 

Mst. Khadija Sibi vt The Slais {1969) 21 DLR 613.

--Instances of uclions whicb f.tsi within tli catffiory of "fa an unlawful manner":

 

An action which is mala fide or colourable is no[ regarded as iiclion in accordance the  law. Similarly, action taken upon extraneous ur irrelevant consid^ratiuns is also nol action in accord^iice with law. Aclion taken upin no ground at all or without pniper application of [lie mind of the detaining authority would also not qualify as acrion in accordance with law and would therefore have to be slruek down as bpmg action lakcn in :m unCawfuf manner.

 

Govt. of E. Pak. Vs. Begum Aghts Abdul Korirn Shorish Kashmiri (i969) 21 DLR (SO 2.

 

sentence under section   402 & 401 A Cr.P.C.-- Considerations in rciipccl Ilicreof hcing i jnallt^'orgi'iicc not subject lo scrutiny under Art. 9S of the Co0+nsliJutinn-Ttie fact that Jhc convict wag in detention for 26 months in [lie condemned cell is no ground for coniniuiyiion of the death sentence by involving Art. 98 of the Conijitution.

 

Mir Zawn Vs. Secy so Gwi. of W. Pak (1969) 21 DLR (W?\ 60.

 

Territorial    jurisdiction    as    regards issue of writ of certioraH and also writ of liabiiis   corpus   by   llic   li'fih   CDurt when  s  perwn   is  con fined  in  pl:ift'S  w Hiyh   Court's  wri( jurisdklinn   runs.

 

Ihe purpose of Lhc writ was lo invoke the jurisdiction of [he High Court to exjmine ihc propriety and legality of everyrtnng done at Peshawar from Ihi; making of llic order pf reference uplo [lie issue of the warrant of [he imprisonment. as' wcil a5 inio the authority for imprisonment at Abbi[tatnJd and suet" jurisdiction of [he High Court undoubtedly had.

 

Sat Khan Vs, The State (1967) 19 DLIl f.VCj 174.

 

—Writ jurisdiction-Deprivation of person of his liberty of free movement ensured under Fundamental Right No. Ir-Held: Writ petition fully competent. .(Per M. Akrarn, J.).

 

Syed Abul A'ala Moududi Vs. The State Bank of Pakistan (1970) 22 DLR (WPj 60

 

Art. 98--High Court's duty to uphold the jCpnstitution and declare the Act XIV of 1908 void

fid inoperative..in relevant respect. Abul A'la oudoodi Vs. Prov. of W. Pakistan, (1965) 17 l)LR(SC) 209,,

High Court's duty vis-a-vis the .Constitution,

 

Duty of a High Court under Art. 98 is to uphold the Constitutipn and to enforce a freedom of association by declaring that the Criminal Law Amendrnent Act (XIV of 1908) was void and inoperative in relevant respect. (Per H. Rahman.)

 

Abul A'la.Moudoodi Vs. Prov. of W. Pakistan, (1965), 17 DLR (SC) 209.

--Read with Art. 80 of the Cpnstitutiqn.

 

The,expression "by a person" in Art. 98 in view, of the provisions of Art. 80, refers 4o Governor. (Para 5) (Per Cornelius, C.J.)

 

Abul A'la fytoudoodi Vs. Prov. of W. Pakistan, (1965) 17 DLR (SC) 202.

;

ArtClause 2(a)(ii) of Article 98 does not contemplate making of any consequential order-It empowers High Court to declare act dpne or decision taken to be of no legal effec:t--CQnsequenccs follow of their own force.

 

ShahadalKhan & ors. Vs. Home Secretary to the Govt. of West Pak. (1969) 21 DLR (SQ32.4.

 

Art. 98(2)(a)(b)--Courts'    power    in relation to persons detained : Article 98 of the Constitution has given to the Courts the power to .give directipns to persons .performing certain functions in connection with the/affairs of thei Government or local authority; to do,;0r to. refrain/ from doingithat which the law requires them.to do oriwhich it does,not permit them to do and .to declare acts done by such persons to "have been done:, or taken without lawful authority and as being of no legal effect". In the case of persons detained in custody the power given is to tissue a direction to have such a person brought before the High Court so that the Court may ."satisfy itself that theperson is not being held in custody (a) > without lawful authority or (b) in an unlawful- manner.

 

Govt. of West Pak. Vs. Begum Agha Abdul KarimShorish Kashmiri, (1969) 21 DLR (SC) 1.

 

Art. 98(2)(b)--The words 'Hii^ du unlawful manner" in relation to Article 2 explained*-Determination whether ,a detention is lawful of not, the criterion is that it must be in accordance with the principles of law understood in its widest connotations, lib'The words '''in an unlawful'manner''"m sub1 clause (b) of Article 98(2) have been";? used deliberately to give meaning and coritent 16 thl solemn declaration under Article 2 of the Constitution itself that it is the inalienable'WgWts&I every citizen to be treated in accordance with law and only in accordance with law; Therefore, in determining as to how arid in what eircumstances'ia detention would be detention in an unlawful manner one would inevitably have first to sCc whether !tlfe action is in accordance with law, if not, theii it'iiS action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting'all that is treated as law in this country including even the judicial principles laid down from time to time by the superipr Courts; h means according to thci accepted forms' Pf legal process and postulates a strict performance ofall the functions and duties laid' down by law.

 

Govt: -df West Pak. Vs;tBegum Agha Abdul KafMlSk&tis'K Kashmiri, (1969) 21 DLR (SC) 1.

 

ni —iConsiderations   which   should   weigh with  the Court in deciding the iegaliiy' or; othefW'ise. .of: d«|enitioni .Islasbaq pfij n TheiCourtin order-to..bosaiisfiedias;feqairedrby :-the Constitution must know- that there were, in fact; grounds upon 'which thte;action 'of the 'alithprity'1 concerned i could: not have been ;foflttdc^ ^after an! honest^applicatiort; of ahefiininrf'ofi'-thes" stahpritiy! concerned'to; ail the relevant considdpationSJtltei

 

W. df Wesfifiak. Vs."Bsegum Agha-A'bdui Kashmiri, (1969) 21 DLR (SC) 1.

 

"Reasonableness of .action -tor be established'- Acting mala •-. fide is' not acting reasonably—Reasonable /.ground. or belief is an important •elem.ent '..-• In ascertaining the existence of bona fide.

 

The degree of reasonableness has at least to be established which has been indicated in the case of 'Abdul BaqiBtiloch: An authority could not protect Himself by merely saying that he believed himself acting in pursuance of a statute.

 

'A rnalti fide action is hot action in. accordance 'with law. ;Thc requirement of reasonableness has ~ fklsb been added to the requiremdht of good, faith. The question of reasonableness would be pertinent in an 'enquiry as to mala fides. Reasonable ground or belief is an important ingredient in ascertaining the

existence of bona fide.

 

A person acting in pursuance ,of a statutp cannot said to be acting bona fide if he has no reasonable girbiind for believing that the statute justifies him in What he dobs; Then that is a Case in which the (j&ufts : would irt exercise pf the 'power under Article 98 of the Constitution declare the act to have been dope^n an unlawful manner. Begum-;Agha Abdul Karim Shorish -Kashmiri, DLR4SC) I. . . :

 

Powers  of  the Jiigh under    Article v. 98    to/ rentcrce fundamental Tight very

The power of the High Court tinder thfe Constitution of 1962 of, Pakistan to pass appropriate orders under Art. 98 thereof to enforce any of the fundamcn.tal rights conferred under: that Qonstitutiqn held to-be very wide even thou,gh; that Article ,9§ ,did not, specify : by name the  various kinds.of, writs that could ;be.-issucd by Cpurt. Govt. of Bangladesh

 

Arts. ."M.and ,102: Both the articles (i;e, and 98) are:Similar-Thp Supreme Court of (Pakistan under :article. 98, o£ the Pakistan arp binding on the High Court, Bangladesh Supreme Court. G

 

olam Kabir Vs. Govt. of Bangladesh (1975) 27 DLR 199,            

 

Art. 98(,2)(cX»-Power! of judicial review by the superior CouM extepds to examine •the ' epnstitutionality bf a Apiece :

 

u insbigoil 3d) onder the Constitution}'extonds tot S6hl^\tti jexant'injin'g thb constitutionality of the action taken under a law but also the fconslilai|icinality 0f;ihe{la*Kilselif;i&y the rinaorperation ofi Article 6; mFbf AKticteSS :by the Amendrhejfit ©S thejHigli'iCowt) to decide also!as-to whether -

tiielafw under which  the fundamental Tighbibf i a subj©ct is* sought! -to be infringed is a law w hfete A should' ' prevail notwithstanding die ^onstitul'ionf.Oovi: J^/ iRowshbn Bijaya ^966) 7

 

Article. 98(2)(c) deniedi theirclicf sought against sucrtidcriialeatthot be icfiispd,1: ort-tho grbund ihat'iGpvGrRWietlt'rnay aWcndspaEtieuldn Iaw\ w ithHrQ,tospettivc'Mfceti'

 

Abiil Ma Moudoodi Vs. Prov. of West Pakistan (1965) 17 DLR (SC) 209.

 

Art. 123-Coniernpt of subordinate' 'Court— High Court to; talce action K3 agaiinst person maliciously maligm'ng .a' sabordinate' Court-The Slate Vs. Yusuf All Khan (1969) 21 DLR.

 

5. Lawyers.

6. Subjudice-pending proceedings.

7. Misrepresentation of judgment.

8. Newspaper comment.

9. Procedure.

10. Scandalizing Court.

11. Test

12. What is contempt and what is not.

13. When proceeding should be taken (power of committal).

1 . ApoIogy

 

Apology, to be acceptable, must be absolutely unqualified.

An apology which is partly unqualified and partly in justification of an offending act is not an unqualified apology and cannot be accepted.

 

State Vs. Md. Taru Mia (1959) 11 DLR 5 (1959) PLD (Dae.) 355.

 

-An apology, however unqualified it might be, does not necessarily purge the contempt; for, it can only be taken into consideration in mitigation of the offence of contempt.

 

State Vs. Lakitulla, (1958) 10 DLR 309.

—Expression of regret: An expression of regret after making every effort to justify the action complained of cannot be treated as an unqualified apology or even as an apology simpliciter. "An attempt", it has often been said "to justify the conduct and at the same time to express regret for the act is a contradiction of the terms". Where it is contended, as in the present cases that the publication; dould not;fEfSsiblyiamount to .contempt, the subsequent apology can hardly be regarded as genuine. -

 

Advocate General Vs.^Shalbir :A'hmed (1963) 15 DLR(SC) 356.

 

--Apology and regret--difference between

An apology is an admission of offence coupled with an expression,,of;regret whereas a rcfgrct is merely an expression of remorse or pain of conscience or pain of mind for -something 4one.

 

State Vs. Pak. Observer,(1958) 10 DLR255.

 

—Apology tendered in the High Court cannot be accepted. (1957) 9 DLR 43,h

 

—Contempt of Court is to be dealt with firmly if foundations of institutions of the Country are to be laid straight :and,rs®Hd-aecepting apology at the High Court stage is liable to create impression that contempts, however .much may be; condemned theoretically, can be purged by expression of regret. (1949)1 DLR 177.

 

When  a  mitigattng circumstance-

An apology in a contempt case can be a mitegating iCireuihstaneesonly; if the eonicrnncr surrenders himself unconditionally to  the judgment ofhthe iC0Uft>tiA«iii[;ap0lQgy after every conceivable defences ean^faardiy:; be considercd ,to be genuine , apology j{1955)(7f}LRi^F£) ^9 (at page M right-hand column); 2 PCR 64 (71).

 

The proper Court to accept the apology is the one in respect of which the contempt was 7:,:DLR '(PC} 19,

 

-Allegation in;;newspaper against a Judge, undermining dignity of Court, may amount to contempt even if true-Apology with a plea of justification—Apology not genuine. (7955) 7 PLD [Bal]J6.

 

Magistrate deliberately disobeying directions of High Court- Contempt serious-Apology-haif-hcarted at late stage- not available. 7 PLD (Lah).

229An apology consists of acknowledgement of« commission of contempt and an expression of regret ' for such commission. The Court's satisfaction will depend upon the adequacy of: terms of an apology, [ sincerity and the gravity of the contempt; 7

 

-'Contempt of Court— Apology tendered by person guilty of contempt can be taken into consideration if offered   unconditionally and as evidence of real condition. The Stale Vs. YusufAli Khan (1969) 21 DLR (WP) 264' rtui     Advocalc imputing partiality to a judge of !the Supreme Court in the disposal of cases before the'! Court with half-hearted apology for the wrong dohe is guilty of contempt of Court.

In the matter of contempt of Court by Mr-. ' Karamat Ullah Khan, (1971) 23 DLR (SC) 34.

 

-Superior Courtk order should be duly fespected' by all concerned. Sk< Abdul Bari Vs. Abdus Sdrtiad Bhuiya (1977) 29D.L.R.20-Contempt of Court- When apology offered is unacceptable.

 

Abdul Karim Sarkar Vs. The State (1986) 38 DLR (AD) 188.

 

--Acceptance of an apology tendered not at the earliest opportunity Showing sincere regret, woulfl3 amount to opening^and not closing the dobr; of scandalizing the Courts. Abdul Karim Sarkar Vs. The State (1986) 38 DLR (AD) 188. 

 

—Contempt of court-Apology when offered Some tests laid down for acceptance of apology by the conlcmner. "In considering whether the apology should be accepted or not, a few facts should be taken into; consideration'. These facts, as mentioned by the Court, are:-

 

(i) As to whether the appellant appreciate that his act was within the mischief of contempt;

(ii) Whether he regretted it;

(ii) Whether his regret was sincere;

(iv)  Whether  it  was  accompanied   with expression of the resolution never to repeat agair.

(v) Whether he made humble submission to the authority of the Court. Abdul Karim Sarkar Vs. The Slate (1986) 38 DLR (AD) 188.

 

--Justification of the Conduct of the contemncr by resort to arguments-Not an unconditional apology.

 

The state Vs. Abdul Karim Sarkar (1985) 37 DLR 26.

 

-A contemner may challenge the contempt Rule and file a counter-affidavit setting up alternative facts and circumstances. But if before the hearing of the Rule he changes his mind and offers an unqualified and unconditional apology can not be said to be a belated one.

 

The State Vs. Nazrul Islam (1985) 37 DLR 200.

 

--S.D.O. violated the Sub-Judge's injunction order prohibiting holding of elections, and further addressing a letter to the Sub-Judge in disrespectful terms, flouting the Court's order - On a charge for contempt of court, the S.D.O. offered unconditional apology, and invoked court's mercy-Apology not accepted and contemner S.D.O. sentenced to pay a fine in default to imprisonment.

 

The State Vs. Md. Abdur Rouf (1985) 37 DLR 188.

 

-Apology offered by the contemncr to' the Court-Elements which should be fulfilled in order to induce the court to accept the apology as one which can be accepted by the court.

 

The State Vs. Nazrul Islam (1985) 37 DLR 200.

,

-In order that a Court may accept the apology of a contemner, four elements are necessary in an affidavit offering unconditional apology. First, a sincere and candid admission of guilt; second, a convincing expression of regret and remorse; third, a solemn under-tajdng not to repeat the offence; and further, an unqualified and unconditional apology to

An Ordinance (Promulgated by the Governor) to become ravalifroa rountfUhitf if-w&s not made with i the.previous instructions^ of the'President (nor did the President's! assent) it must ;bd shown 4hai the' sitbjoaot-Aiatlef the Ordirianee is i®btable lOianieritry-ansthejCdnbufrerit' List and thai its pavisioris am reffugnawtitb ianyof.teibnSi"rjfl any,ilexisjaikgilavisliopian earlier! Act '6f ParliaiBert-wdtBSfiespBctuto tic; '.sainie- subject-matter; GhufamrtAlijBkahiiy Th&St & l e

 

Arts. 132-215

Art. 132--West Pakistan Control of Goondas Ordinance being relatable to an entry in the Provincial List is within the Legislative competence of the Governor—No assent of the President is necessary for its validity.

 

Syed Ghulam Ali Shah Vs. The State (1970) 22 DLR (SC) 247.

 

Art. 133(3)--Power of judicial review by the superior Court extends to examine the constitutionality of a piece of law.

 

The power of judicial review under the Constitution, extends not only to examining the constitutionality of the action taken under a law but also the constitutionality of the law itself, by the incorporation of Article 6 and the addition of clause (3) to Article 133 and paragraph (c) to clause (2) of Article 98 by the Amendment of 1963. In enforcing that right it is a clear duty of the High Court to decide also as to whether the law under which the fundamental right of a subject is sought to be infringed is a law which should prevail notwithstanding the Constitution.

 

Govt. of E. Pak. Vs. Mrs. Rowshan Bijaya (1966) 18 DLR (SC) 214.

 

Art. 170--Relicf sought under Article 98 are substantially the same as that incorporated in Art. 170 of Constitution of Pakistan 1956. Aktaruddin Khan Vs. Prov. ofE. Pak. (1963) 15. DLR 1.

 

Art. 177(l)(a)--'Appointing authority-Divisional Officers being the real appointing authority though the choice to such appointment controlled by the Head Quarters Office, the former has the power of removal.

 

Federation of Pak. Vs. Syed Nazir Ahmed (1966) 18 DLR (SC) 333.

 

Art. 223(l)--President's Order II of 1961: President's Order II of 1961 which extended Superior Courts' jurisdiction to Tribal Areas not having been passed by the National Assembly is not a law of the Central Legislature though it may be termed as Central Law within the definition of Article 242 of the 1962 Constitution and therefore, loses its efficacy under clause (5) of Article 223 of the Constitution. So the writ jurisdiction of the High Court did not extend to the Tribal areas.

 

Jamil Ahmed & another Vs. The State (1969) 21 DLR (SC) 337.

 

Arts. 225 & 250--Offence  triable  under Regulation 58 and proceeding in respect thereto pending when the Constitution came into operation-Trial can not be dropped. Offence of carrying currency notes unauthorised beyond the border of Pakistan was committed by the accused on 30.11.61, which was triable under Regulation 58 of the Martial Law Regulation. The case against the accused actually started before the Sessions Court on 15.6.62, and the accused was discharged on the ground that the Martial Law expired under Article 225 of the Constitution with effect from 8.2.64, the day on which the Constitution came into being. Contention raised against this was that the order of discharge was illegal in view of the provision of Article 250 of the Constitution, that the ordinary Criminal Courts could try the offence under clause l(a) of the Regulation 58 and further that Article 3 of the President's Order 26 made the Criminal Courts competent to try the offences pending before the Military Courts before 8.2.64.

 

From the provisions of Art. 250 of the Constitution it is clear that the present proceedings which were launched at a time when the Martial Law Regulation No. 58 was in operation and was pending from before the commencing day could not have been revoked with the coming into force of the Constitution.

 

East Pak. Vs. Renuka Moyee (1964) 16 DLR 525.

 

Arts. 225 and 250(e)--Cases under Regulation 45 of the Martial Law Regulation pending before the Martial Courts (i. e., Special or Summary Military Courts) stood transferred under Article 225 read with Article 250 (e) of the Constitution to the ordinary criminal Courts having jurisdiction to try the offence on the commencing day (i.e., 8.6.62) of the Constitution under section 3 of the President's Order No. 26 of 1962 to be tried as an offence under that Regulation following the procedure laid down in the Criminal Procedure Code.

 

Amulya Chandra Vs. State (1965) 17 DLR 152.

 

Art. 225 (3)-Regulation 41 stands repealed from 8.6.62-Offence triable under this Regulation not having been transferred to ordinary Courts and not being pending proceedings on 8.6.62 can not be tried.

 

Salim Golam Hossain Vs. State (1966) 18 DLR 189.

 

-The contention raised was that the Martial Law Regulation having been repealed as and from 8.6.62, which is the commencing day of the Constitution, the petitioners could not on 5.2.1963 be subjected to trial before an ordinary Court for purely Martial Law offence now stands repealed. Salim Golam Hossain Vs. State (1966) 18 DLR 189.

 

-Present proceedings were not pending on the commencing day of the Constitution. Salim Golam Hossain Vs. Stale (1966) 75 DLR 189.

 

-President's Order No.26 of 1962 applied to all pending proceedings before Special Military Court or Summary Military Court, that is, that all such pending proceedings could be transferred to the ordinary court whether there was corresponding liability under the ordinary law or not. Salim Golam Hossain Vs. State (1966) 18 DLR 189.

 

-Mere registration of an offence does not mean it was a pending proceeding.

Mere registration of the offence under the appropriate Martial Law Regulation, does not mean that the proceedings were pending before the Special or Summary Military Court. Although it may be said that the proceedings were launched at a time when the Martial Law was in operation the charge-sheet by the police being on 18.5.1962, it could not be said that the matter was pending before either the Military Court or the ordinary Court before the commencing day. The present proceedings against the petitioners are not warranted by law. Salim Golam Hossain Vs. State (1966) 18 DLR 189.

 

Contempt of Court.

 

Synopsis   :

1.  Apology.

2. Disobedience of orders or processes of Court.

 

3. Interference with administration of justice.

4. Jurisdiction.

the Court, invoking its mercy. A Court of law will not be satisfied with a mechanical offer of an unconditional apology unless the contemner purges himself of the offence of contempt of court in the aforesaid manner.

 

The State Vs. Nazrul Islam (1985) 37'DLR 200.

 

-Unqualified apology offered before the hearing of the case withdrawing an earlier counter-affidavit--Acceptable by court.

 

The State Vs. Nazrul Islam (1985) 37 DLR 200.

 

-Sub-divisional Officer found guilty of contempt of court by the High Court Division-Sentence awarded is imprisonment till rising of the court. We find the Sub-divisional Officer, Sherpur is guilty of contempt of court. Since the contemner has expressed regrets and offered unconditional apology and restored petitioner in possession of the property from which he was evicted although not to the full satisfaction of the petitioner, we are inclined to take a lenient view in the matter of sentence. Accordingly, we sentence the contemner to imprisonment till the rising of the Court. Mom.tazu.ddin Ahmed Vs. Abdur Rashid Khan. (1982) 34 DLR 113.

the Court, invoking its mercy. A Court of law will not be satisfied with a mechanical offer of an unconditional apology unless the contemner purges himself of the offence of contempt of court in the aforesaid manner.

 

The State Vs. Nazrul Islam (1985) 37'DLR 200.

 

-Unqualified apology offered before the hearing of the case withdrawing an earlier counter-affidavit--Acceptable by court. The State Vs. Nazrul Islam (1985) 37 DLR 200.

 

-Sub-divisional Officer found guilty of contempt of court by the High Court Division-Sentence awarded is imprisonment till rising of the court. We find the Sub-divisional Officer, Sherpur is guilty of contempt of court. Since the contemner has expressed regrets and offered unconditional apology and restored petitioner in possession of the property from which he was evicted although not to the full satisfaction of the petitioner, we are inclined to take a lenient view in the matter of sentence. Accordingly, we sentence the contemner to imprisonment till the rising of the Court. Mom.tazu.ddin Ahmed Vs. Abdur Rashid Khan. (1982) 34 DLR 113.

1802

Abetment-1

Citation: (1959) 11 DLR 258, (1974) 26 DLR 419, (1981) 33 DLR 379, (1957) 9 DLR 41, (1956) 8 DLR 238, 16 All. 389 (390), 1942 Sind 62 (64), 1934 Pat. 561 (563), 1943 Pat. 212(217), 1947 Nag. 113(114), 1943 P.C. 192 (195), (1964) 16 DLR 147.

Subject: Abetment

Delivery Date: 2018-08-09

Abetment

 

Incitement when it amounts to abetment to murder. The deceased was chased by persons armed with knives and when the deceased fell down, the order to beat was given by Abdul Bepari who had been convicted u/s. 302/107 by the Session Judge. Whether by giving order to beat is said to have abetted.

Held : Order to beat when the assailants were all armed with knives and Abdul Bepari must have known what the consequences of his order would be. It can not be urged on his behalf when he gave the order to assault he did not intend the murder of the deceased.

 

State Vs. Bahar All and others(1959) 11 DLR 258

Abetment charge-Identity of the accused not established. Abetment charge must fail. T

 

he State Vs. Makbul.Hossain & others (1974) 26 DLR 419.

 

Abetment what it means—Anything done under duress or coercion does not constitute abetment.

 

State Vs. Makbul Hussain(l974) 26 DLR 419.

 

Abetment is an offence by itself and unless it is specifically made punishable in a special Act a person can not be called upon to answer a,charge of abetment in the absence of any specific provision in the special Act merely by reference to the Penal Code.

 

Abdul Halim Pattadar Vs. M. Rahtnat AH (1981) 33 DLR 379.

 

The intentional aiding of the doing of a thing by illegal omission constitutes abetment.

 

Ashraf All Vs. State (1957) 9 DLR 41.

 

Abetment must be an act facilitating the commission of the offence. It must be some act done either prior to or at the time of the commission of the offence, and it cannot refer to any act done after the commission of the offence.

 

Abdul LatifMirdha Vs. Crown (1956) 8 DLR 238.

 

Abetment for sustaining a Charge of abetment, some evidence of overt act or commission necessary-Mere motive is not sufficient evidence of abetment. Abetment even if common intention not borne out by facts, accused may be taken to be aiding one another in crime. PLD 1955 Lahore 575.

 

Abetment to conspiracy-whcthcr a substantive offence. PLD 1956 Karachi 395.

 

Abetment- offence cognizable- Abetment of offence also cognizable. PLD 1956 BJ13.

 

Abetment- whether or not accused guilty of abetment depends upon whether he intentionally aided the other accused in perpetration of crime. PLD 1955 Lahore 356.

Where a person residing at C sends a letter to another at G through post inciting him to the commission of an offence, he is guilty of the offence of abetment as soon as the letter is received by and the contents known to the addressee at G and is triable at G, the place where the letter is rcceived-Sheo Dial,

 

16 All. 389 (390).

 

—Although an abetment of an offence might have taken place outside the territorial jurisdiction of a Magistrate, yet under this section the abettor can be tried by a Magistrate within whose territorial jurisdiction the offence abetted was committcd-Chenawa.l Weir 155 (156).

 

—Where the abetment of the offence, as well as the offence itself, is committed in N (a place in the State of Bengal) but the abettor has a house in J (a place in the State of Behar), the charge of abetment should be inquired into and tried in N and not in J. A committal order in respect of the charge of abetment passed by a Court in Behar is without jurisdiction and must be quashed. If the abetment is committed both in a place inside the State of Behar, as well as in a place outside that State, it may be inquired into and tried in a- Court of Behar-Bhagwatia, 3 Pat. 417 (424).

 

The abetment of an offence is no more or no less than an abetment of that offence. A person may constitute himself an abettor by the intervention of a third person without any direct communication between himself and the person employed to do the thing, and under Expl. 5 to sec. 107, I.P.C., in the case of abetment, by conspiracy, it is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. There is therefore no reason to exclude the application of sec. 180, in such a case-Md. Ayoob v. Emp., A.I.R. 1946 Sind 1 (6). A distinction has been drawn between the abetment of an'dffence mentioned in clause (b) of sub-section (1) of Section 195 of Cr.P.C. and the abetment of an offence mentioned in clause (c) of the same sections Since clause (c) speaks only of offences committed by a party to the proceeding, it follows that no complaint by Court is necessary in respect of an abetment of an offence mentioned in clause (c), if the abettor was not a party to the proceeding-Ghansham, 32 All. 74. But in the case of offences mentioned in clause (b), an abettor cannot be prosecuted without a previous complaint by the Court, even though he was not a party to the proceeding, because no mention is made of a 'party' to the proceeding in clause (b)-Ram Bilas v. Lachmi Narain, 45 All. 140.

 

"It may be urged that sec. 195 (1) and (4), Cr.P.C. refers to offences and not to offenders, and that a conspiracy to commit an offence within the meaning of sec. 195 (4), Cr.P.C. includes not only parties to the proceedings, but all conspirators, whether parties or not. This argument has much in the sphere of common sense and convenience to recommend it, but the bulk of judicial authority is against this interpretation. That view of the majority of the Courts appears to be that as sec. 476, Cr.P.C. limits the ordinary procedure the words must be construed strictly, and the ordinary procedure of the Courts as laid down in the Code must be departed from as little as possible." (per Davis, CJ.)-

 

Gobindram v. Emp., A.I.R. 1942 Sind 62 (64).

 

Under sub-section (4) of this section an"offencc" under the section includes abetments and attempts, so that if a complaint of the Court is necessary in tJhc case of the substantive offences it is also necessary in the case of abetment-

 

Assudomal v. Jhamandas, A.I.R. 940 Sind1 100 (101).

 

Under this sub-section the previous sanction of the Magistrate is necessary for a prosecution under section 193/120B. I.P. CoAc-Mathuranath, 33 Cr.L.J. 657. It would be violating the spirit underlying sec. 196A, Cr.P.C., if a person were allowed to be convicted of an offence under sec. 120B, I.P.C., even though his prosecution under that section is neither sanctioned by the District Magistrate nor was within the contemplation of the officer making the complaint under sec. 476-Bhikhari,

 

A.I.R. 1934 Pat. 561 (563).

 

A Magistrate taking cognizance of abetment of the offences mentioned in this section must be deemed to have taken cognizance of the substantive offences, and, therefore, a complaint by the aggrieved person is a condition precedent to the taking cognizance of the abetment- Jitmal, 4 P.R. 1888. But the Allahabad High Court holds that sec. , 198 does not apply to a charge of abetment of the offences mentioned therein. Section 195 provides in express terms that a complaint is needed for a prosecution for the abetment of the offences mentioned therein or for an attempt to commit them. No such provision is contained in sec. 198, and it cannot therefore, be said that the charge of abetment of the offences referred to therein is excluded from cognizance without a complaint by the person aggrieved by such abetment-Mu«/>, 27 CrLJ. 101. Meredith, L, of the Patna High Court took a different view and observed: 'In the case of sec. 198, however, the wording is No Court shall take cognizance of an offence falling under Chapter 19 or' and so on. Surely, if we attach to these words their ordinary meaning, it must be held that the abetment of an offence and attempt to commit the offence fall under the offence itself, and I am of opinion that where the word "offence" is here used the intention was to iaclude such minor offences as might fall under that offence, namely, attempts and abetments" - Banamali v. Emp.,

 

A.I.R. 1943 Pat. 212(217).

 

There is a conflict of opinion as to whether a person charged with a substantive offence can be convicted of abetment of that offence, when he was not charged with  the latter offence.  In  re-Padmanabha, 33 Mad. 264; Vafayal, 13 Cr. L.J. 223; Profulla, 50 Cal. 41    (47); Sheoraini, 21 CrLJ. 44 (Pat.); Darbari, 22 CrLJ. 311; Muthu Karakku, 23 CrLJ. 206; Re$. v. Chand Nur, 11 Bom. H.C.R. 240; Raghya, 25 CrLJ.  1135;' Hulas, 28 CrLJ. 2; Mahabir, 49 All. 120; Ratna, 1932 M.WJV. 1216; Hampana v. Emp., 37 CrLJ. 421, and Ponnuswami v. Emp., 39 CrLJ. 465, it has been held that it is improper for a Court to find a man guilty of the abetment of an offence, on a charge of the substantive offence only; because when a man is accused of a substantive offence, he may not be conscious that he will have to meet an imputation of collateral circumstances constituting an abetment of it, which may be quite distinct from the circumstances constituting the substantive offence itself. A charge for the substantive offence as such gives no intimation of a trial to be held for the abetment. But in Joseph, 26 CrLJ. 492 (498); Punamchand, 30 CrLJ. 224; Yeditha, 13 CrLJ. 453; In re Syamo, 55 Mad. 903 (F.B.); Samuel John, 36 CrLJ. 247; Suraj Bhan, 36 CrLJ. 1438; Keher 'Singh, 22 CrLJ. 161, Bhikari, supra, and S.P. Ghosh, 16 CrLJ. 676 (F.B.), it has been said that if on the facts proved two charges can be framed under the provisions of sec. 236, viz., the commission of the principal offence and the abetment thereof, the accused can be convicted of the offence of abetment, though it was not separately charged against him. The Calcutta High Court observes that it cannot be laid down as a universal rule that a person charged with a substantive offence only cannot be convicted of abetment thereof; the answer depends on the facts of each case, and it must be seen in each case whether or not prejudice has been caused to the accused by such conviction-Kadira, 29 CrLJ. 1093 (1095); Debi prosad, 36 C.W.N. 295 (297); Janada Charan, 34 C.W.N. 198; Indar Chand, 42 Cal. 1094(1133). The same view has been taken in Khuman, 32 CrLJ, 905 (907, 908) and Miiho,AJ.R. 1934 Sind 89 (91).

 

It is permissible to the Court under law to convict the accused of abetment when he was charged only with the substantive offence. The principle is that if evidence adduced in support of the charge for the substantive offence does not give notice to the accused of all the facts which constitute abetment, he cannot be convicted of abctment-TVov/na'a/ Govt. v. Gomaji, 46 CrLJ. 80 (81). There is no bar in law to convict a person of abetment without a distinct charge if the circumstances bring the case under sec. 237, Cr.P.C. That power can unquestionably be exercised by the appellate Court-Provl. Govt. v. Sadu,

 

A.I.R. 1947 Nag. 113(114).

 

There would no doubt be cases where abetment is only a minor offence as compared with the substantive offence. But where the facts which would constitute the offence of abetment are quite different from the facts which would constitute the offence of manufacturing counterfeit coin, the Magistrate is not justified in convicting the accused of being an abettor, although he has been charged with being the principal in the manufacture of counterfeit co'm-Dhanpat v. Emp., 41 Cr. LJ. 540.

It is doubtful if in a case covered by sec. 1 14, I.P.C., it is in fact enough to frame a charge as for the substantive offence without special circumstances which bring the case within the purview of sec. 114 LP.Code-Chotey v. Emp., 49 Cr.LJ. 168 (169).

 

Conviction under sec. 109 I.P.C. for an abetment of an offence under sec. 324, I.P.C, when the accused had not been charged with such abetment, but under sec. 307, I.P.C. only, is ' v. Emp., supra.

 

An accused may be convicted of a substantive offence though he was charged only with abetment of that offence; see Lai Chand. 13 C.L.J. 252. Where the, accuseds are charged of abetment of an offence, they can be convicted of the substantive offence if the accuseds have not been prejudiced in their defence of the case based on a substantive chargc-Emp., v. Javanti Lai, 48 Cr.LJ. 419 (422). Sec also Suraj Bhan, Supra. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. Where; therefore, the acts alleged against the accused as constituting an abetment in fact constitute the commission of the actual offence under sec. 34, I.P.C., he can be convicted of the principal offence under sec. 34, l.P.Code-Satyanarayana v. Emp., A.I.R. 1944 Pat. 67 (73). The conversion by the Appellate Court of a conviction from one under sees. 430 and 114 to one under sec. 430 read with sec. 34 I.P.C. is not illcgal-Sambasiva, 32 Cr.LJ. 753. (755); Suraj Bhan, Supra.

 

Where a charge was preferred against a prisoner of (1) murder and (2) abetting a named person to commit murder, not only might a conviction be upheld of abetting a person unknown under sec. 227. Cr.P.C., but under sees. 236 and 237 of that Code, the accused might be convicted of the offence which he had actually committed, i.e., of abetting a person \mknown-Queen-Emp. v. Appa Subhana, 8 Bom. 200. This question arose before their Lordships of the Privy Council in Thakur Singh v. Emp.,

 

AJ.R. 1943 P.C. 192 (195).

 

According to the Madras High Court, if on the facts two charges, that is, one for, the principal offence and the other for abetment can be framed, then the accused can be convicted of abetment though not charged separately. If the facts constituting the principal offence and the abetment are different as they generally are, then the conviction cannot be for abetment on a charge for the principal otfence-Subbaya v. Emp., 23 ML. 722.

 

Reviewing the rulings quoted above the Patna High Court has held that an abetment of an offence is not a minor offence within the meaning of sec. 238, Cr.P.C. and that if the facts of the case are such that the principles of sees. 236 and 237, Cr.P.C. may be applicable thereto, and if no prejudice is caused to the accused in his defence, the Court of revision can alter a conviction for substantive offence into one for abetment- Ilira Sah v. Emp., AJJt. 1947 Pat. 350 (351, 355).

 

Where some of the accused are principal offenders and the others accomplices, clause (b) of section 239 permits these all to be tried together in one tfial-Sugaimuthu, 50 Mad. 274. Thus, where a person who had a licence for the sale of opium allowed another, who had no such licence, to sell it, they could be jointly tried, the offence of the former being an abetment of the offence of the latter-CMa/7 Behari, 4, Cr.LJ. 178. A licensed vendor is punishable under sec. 50 of the Bengal Excise Act for the acts of the servant; in such a case, the master is said to be an abettor of the servant by implication, and both may be tried together-/Vry« Nath, 13 CrLJ. 255.

 

If A induces B to cheat, and B attempts to cheat in consequence, A and B may clearly be tried together for abetment and attempt at cheating-ATa// Das, 12 Cr.LJ. 106 (107).

 

Jurisdiction, being the foundation of the charge, is to be imported or understood as present in all the subsequent procedure set out in the Code; and if that is so, it clearly must govern sec. 239. Therefore, in an offence of criminal breach of trust a Magistrate has no jurisdiction to try the abetment and receiving which clearly took place outside his territorial jurisdiction-Sachidanandam v. Sowmya, 52 Mad. 991.

It is open to the prosecution to charge.abetment generally, and then, if the evidence did~iiot establish abetment other than in one particular form, to rely on this particular form for a conviction. The charge will amount to notice to the accused that they have to meet a case of abetment in one or more of the different ways indicated in sec. 107, I.P.Code, It will no doubt be better, having regard to the evidence which the prosecution have at their disposal, to make the charge more spccific-Harendra v. Emp., 39Cr.L.J. 385 (396).

 

When all the accused are charged under sec. 147 I.P.C. with forming themselves into an unlawful assembly with the common object of committing arson, a separate charge of abetment is wholly unnecessary Subbaratnam, 50 CrLJ. 950 (Mad).

 

Abettor-Principal accused acquitted of the offence-whether abettor will also be acquitted of the same offence depends upon the nature of a particular case-charge of abetting a known person or unknown person.

Abdus Shukut Vs. Stale (1964) 16 DLR 147.

 

1803

Absconding

Citation: 19 W.R. 12 (13), 1943 Oudh 325 (328), 23 CrLJ. 454..

Subject: Absconding

Delivery Date: 2018-08-09

Absconding

 

The Magistrate must be satisfied that the accused was absconding or concealing himself for the purpose of avoiding the service of the warrant. The mere fact that the Sub-Inspector could not find the accused is not enough under this section-

 

Shewdyal v. Griban, 6 W.R.73 (74); Ram Kishore, 19 W.R. 12 (13).

The term "abscond" does not necessarily imply change of place. Its etymological and ordinary sense is "to hide oneself," and it matters not whether a person departs from his place or remains in it, if he conceals himself. In either case, he is said to 'abscond.' Moreover, the term does not apply to the commencement of concealment. If a person having concealed himself .before process issues, continues to do so after it is issued, he is said to abscond-Srinivasa Aiyengar,

 

4 Mad. 393. See also Forbes v. Emperor, AJ.R. 1943 Oudh 325 (328).

 

To be deemed an absconder, one need not be proclaimed as such under this section. But an absent

person should not be too readily assumed to be an absconder without due inquiry and notice-2 Weir 40.

A man who files a petition against an order issuing the warrant and takes steps to procure the order of a superior Court that he should be allowed to remain on bail after such warrant has been issued, cannot be said to be absconding or concealing himself, and a Magistrate is not justified in proceeding under this scction-Qamardin,

23 CrLJ. 454..

 

1804

Absconding-1

Citation: 6 DLR (WP) 52, 17 DLR 222, 9 DLR (WP) 1.

Subject: Absconding

Delivery Date: 2018-08-09

Absconding

 

Before absconding can be used against an accused person it must be established that he absconded not because, though innocent, he was afraid of being arrested but because he had a guilty conscience and cases are not uncommon in which innocent persons, when convinced that they are going to be arrested, have absconded.

 

AH Vs. Crown (1954) 6 DLR (WP) 52.

 

Absconding offender.-Finding as to nature of offence- arrived at in case against companions -Not binding in case against absconder- Sentence. Held, that the finding with regard to the nature of the "offence in the previous case against the companions of the absconder has no relevancy in the later case against the absconder himself. Even if the facts found in the two cases were identical, there was no reason that the decisions also should be identical. Shah vs. Crown, PLD 1955 Lahore 679.

Absconder-High Court found no case against him~No (rial to be held.

 

One of the accused in a murder case was found absconding. The High Court, while considering the evidence on record, in the course of an appeal by' the convicted co-accused, found that no case would lie against the absconder and thereupon directed that no proceedings shall be taken against him when he returns from hiding.

Shahbaz Vs. Crown (1957) 9 DLR (WP) 1.

—No hard and fast rule that when the person who was charged with substantive offence is acquitted, the abettor must also be acquitled-lhat depends upon evidence

Shama Vs State (1965) 17 DLR 222.

1805

Accusation

Citation: (1970) 22 DLR 217, (1978) 30 DLR 191, (1974) 26 DLR 185.

Subject: Accusation

Delivery Date: 2018-08-11

Accusation

 

Under Special law, namely, the East Pakistan Pure Food Ordinance, 1959, but conviction under the Pakistan Penal Code-Illegal. District Council,

 

Kushtia Vs. Abdul Ghani, (1970) 22 DLR 217.

 

Actual Possession-means exclusive posse­ssion: object of £-145 of Cr.P.C. is to maintain and preserve public peace.

 

Md Yasin All vs Abdur Razzak (1978) 30 DLR 191

 

-Actual possession means actual physical possession Actus   non   facit   reum,   nisimens   sit rea.--An Act alone does not amount to guilt, it must be accompanied by a guilty mind. Mens rea, its two constituents.

 

Nazmul Huda Vs. State (1974) 26 DLR 185.

 

1806

Accused

Citation: 7DLR 302, (1953) 5 DLR (FC) 280, (1952) 4 DLR 53 (61), (1953) 5 DLR (FC) 107 (122), (1952) 4 DLR (FC) 53, 3 DLR (FC) 156, 24 DLR 230, 25 DLR 335, 22 DLR HO, 21 DLR 3 W, 21 DLK 310, I9S2 PLD (Sind) 28, {1975) 27 DLR ,

Subject: Accused

Delivery Date: 2018-08-09

Accused

 

Acceptance of his statement-li is true that statement made in .presence of an accused person even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated, save so far as he accepts the statement so as .' to make it, in effect, his own; but the acceptance of the statement may be either by word or by conduct or action or demeanour.

 

Md. Yusuf Vs. Crown (1955) 7DLR 302 (312 rt.-h. col., bottom).

 

--Evidence at the appellate stage, after his acquittal.

An acquitted prisoner may give evidence against his co-prisoner even at the appellate stage. Such practice should not be encouraged except in the interest of justice and when strictly necessary. Such evidence is likely to be tainted with his vested interest he has in maintaining his acquittal.

 

Md. Sarfaraz Vs. Crown (1953) 5 DLR (FC) 280 (287).

 

--Statement-Accused's statement in Court should be taken into consideration in its entirety, if conviction is to be based solely on such statement.

 

RahimBux Vs. Crown (1952) 4 DLR 53 (61).

 

—When it is not possible to arrive at any conclusion that the accused person acted, as he alleges he did, on consideration of his own statement alone, it is necessary to place his evidence alongside other evidence and circumstances of the case and then to come to a conclusion.

 

Safder Ali Vs. Crown (1953) 5 DLR (FC) 107 (122).

 

-An admission made by an accused person in or out of the Court, unless it be vitiated by any such circumstances as are mentioned in the Evidence Act can be considered to be a matter which the Court may take into consideration in coming to its conclusions.

 

Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53.

--When not arrested—The accused, who was acquitted by the Sessions Judge, was on appeal by the Crown, convicted and sentenced to transportation for life by the High Court. He was, however, not arrested by the authorities for more than 5 months and, by the time of the hearing of his petition for special leave to appeal, was still at large.

 

As the accused had not been arrested for period of over 5 months, he was directed not to be taken into custody pending decision of his appeal.

 

Inayelulla Vs. Crown (1951) 3 DLR (FC) 156.

 

-Accused-Reasonable statement and benefit of . doubt--l( the accused immediately after his confrontation gives an explanation which appears reasonable and not inconsistent with the defence case then he is entitled to benefit of doubt.

 

Abdul Gani Vs. Slate (1972) 24 DLR 230.

-The expression 'accused' carries wiih il j social stigma and if improperly applied may lead lo unhappy results Social dignity guaranteed in

 

[he Constitution, A.T. Mmlha Vs. The Slate, f!973) 25 DLR 335.

--Accused-Person accused not sent up fortrialnoi an accused person andh therefore, can be examined as a witness in rhe irial against the co-accuscd and his evidence tliough admissible would be of very little weight.

 

Abdur Rathsd Vs. The Stale, f 197ft) 22 DLR HO.

 

—Accused's, plea of guilty-Accused pleaded Eli illy and is convicied without affording opportunity lo defend himself. This smacki of a mockery of justice. The police officer arrcsled the petitioner, produced before Ihe Maj-iMrjlcvviih a complaint and the Magistrate at once commenced trial in [he [hana premises and nol in [he Couri room and the petitioner is shown to have pleaded guiliy and is convicied, without affording an opportunity lo defend himself. This smacks of a mockery of justice.

 

Ataur Rahman Vs, The Stale, (1969) 21 DLR 3 W.

 

-Accused can be convicted on his pleading guihy-BuL such conviction noi proper without malcnajs on record to support if.

 

Aiaar Rahman V$. The Sitat, 0969} 21 DLK 310.

 

--Accused intending lo cross border wiih prohibited goods travelling 360 mifcs by loity fn>m Karachi leaving only 35 miles to go. No bamcr or Customs house on border, Uplo Ihc stage, whatever they have done was not punishable under the LawT because they had done any criminal act. Taking of Ihcse commodities from Karachi righi up to the borders of Sind is nol at l.i I punishable by any Law as the move men 1 of the articles within the province was not prohibited.

 

Crow Vs. Md. Xajtque I9S2 PLD (Sind) 28.

 

-Accused acquitted by tiic Appellant Division of the. Supreme Court on an appraisement ol ihe evidence widiout the case being sent back for retrial even though insufficient, cross examination led to his being held guilty.

 

Abdur Rashid vs. Slate {1975) 27 DLR

 

Accused person ,-- Accused-Statements of -Recorded jointly-Trial viuaicd-Re-Trial ordered.

 

Aua Muhammad vs. Azatt, AzadJ & K Govt. PLD 1951 AzodJ&K -IS.

 

-Accused person-Accused attempting 10 tamper with pro^ecuiion evidence-good ground ui refuse bail. FLD 195! Bat 45

-Accused can be examined only if [here is some evidence against him- -conviction on Docior's statcmcni and plea of guilty of accused, held, illegal. PLD !953 peth 40

-Accused can nol be questioned unless circumstances appear in evidence against him. i'LD 1950 BJ.5.

-Accused known to wiincsi by name and face Names not mentioned in Rl-R evidence unreliable. Shah Ah vs. Croivn PLD 1954 Sind 136.

 

Accused not asked to plead after charge-Accused not produced -Irregularity cured by S. 537, PLD 1 95 1 BJ.-9.

—Accused should be given noucc of points which he musl. rncel in order to exonerate Inm^cir PLD 1955 FC. 88.

 

-Accused's attention should be called to his confession and an explanation (hereof sought from him. FLD 1955 Dacca-4

 

-Accused should not be examined u/s. 342 Cr.P.C if the prosecution fails to place on record evidence which furnishes grounds for presuming thai accused has committed an offence. I'LD 1954 BJ.~ 18

--Accused summoned under cute section may be convicted or charged under any other section of Law which from evidence he appears to have committed. FLD 1955

 

-Whether accused has a right produce evidence in rebuttal. PL& 1952 Lahore 388.

-Case based on circumstantial evidence-Examination of accused must be thorough. PLD 1951 Bal. 14.

-Circumstances appearing in prosecution evidence against the accused not put to him-case remanded. PLD 1955-Dacca 68.

 

-Confession being sole support for conviction-Not put to accused-prejudice-conviction set aside. PLD 1956 (SC) (Pak.) 300.

-Counsel appointed by Court on behalf of accused-Court should inform accused, if representation arranged by it not acceptable to him he should conduct his case himself-Failure to give proper opportunity to accused to engage counsel of his choice-Proceedings quashed. PLD 1954 Lahore 547.

 

—Accused should not be left to guess implications of questions put to him. PLD 1954 Sind 256.

-Only formal questions put to accused -Accused prejudiced. PLD 1955 Lah 661.

 

-Accused may if he likes recall a witness only for cross-examination. PLD 1954 Lahore 332.

 

-Magistrate, in justice and equity though not in Law, should ask accused whether he wants a denovo trial or not. PLD 1952 Pesh 53.

 

-Appeal for acquittal-Double presumption in accused's favour-Appellate court slow to disturb finding of fact. PLD 1950 Bal-13.

 

-Presumption of innocence of accused-Rein­forced by acquittal- order of acquittal can beselaside in appeal only for substantial and compelling reasons. AIR 1952 SC 52. PLD 1953 FC 223. ILR 1942 Lah 85

PLD 1954 Sind 126.

 

-Questions put to accused should be so framed as to give him reasonable opportunity to offer his explanation. PLD 1952 Bal. 59.

 

-Right of accused to show cause against conviction-Accused's revision rejected by High Court after full hearing-Notice to accused to show cause why sentence be not enhanced^-Accused entitled to a fresh show cause against conviction. PLD 1950 Lah. 479.

 

-Right of accused to show cause against conviction-Notice issued to show cause against enhancement of sentence on a revision petition filed by Govt. Earlier the appeal dismissed in limine— Appellant whether entitled to show cause against his conviction u/s,439 (6). PLD 1956 SC.(Ind.) 89.

 

-Right of accused to show cause against conviction in case of enhancement or substitution of sentence in reference u/s. 438. PLD 1955 Bal. 10.

1807

Admission

Citation: (1952) 4 DLR (FC), (1952) 4 DLR 53 (61).

Subject: Admission

Delivery Date: 2018-08-11

Admission

 

Accused's admission-An admission made by an accused person in or out of Court, unless it be vitiated by any such circumstances as are mentioned in the Evidence Act, can be considered to be a matter which the Court may take into consideration in coming to its conclusions.

 

Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53(66l-h.Col. bottom) (M. Munif, J.giving a dissentient view in the same case).

 

-Accused's statement in Court should be taken into consideration in its entirety, if conviction is to be based solely on such statement.

 

Rahim Bux Vs. Crown, (1952) 4 DLR 53 (61).

 

 

1808

Advocate

Citation: (1961) 13 DLR CSC) 62, (1960) 12 DLR (SC) 285, (1960) 12 DLR (SC) 168, (1961) 13 DLR (WP) 14, (1975) 27 DLR (SQ-1, (1954) 6 DLR (FC) 65 (67), (1954) 6 DLR (F.C) 65 (79), (1953) 5 DLR (FC) 219 (226), (1953) 5 DLR (WP) 88(95).

Subject: Advocate

Delivery Date: 2018-08-12

Advocate

 

Advocate's professional misconduct-Advocate representing tenant and a co-sharer Land Lord as a proforma defendant, in an ejectment proceedings, tenant taking plea that he was attorned to the Co-sharer Land Lord-later Advocate filing ejectment proceedings on behalf of the co-sharer Land Lord against tenant who confessed judgment- This does not amount to professional misconduct.

 

Faizullah Khan vs. Pir Mukammal Shah (1961) 13 DLR CSC) 62.

 

--Advocate's duty in regard to Court. The obligation is incumbent upon an Advocate to do nothing consciously, by act or omission which might mislead the court in some matter touching the exercise of its jurisdiction and powers in the case

 

Faizullah Khan vs. Pir Mukammal Shah (1961) 13 DLR (SC) 62.

 

—Misconduct or conduct unbecoming an Advocate.

 

State Vs. Akhlaque Hossain (1960) 12 DLR (SC) 285.

 

-Advocate-Misconduct of-suspended not on evidence of this case, but upon material taken from record of departmental enquiry against a Magistrate. Suspension justified.

 

Jabdul Huq Vs. State (1960) 12 DLR (SC) 168.

 

—Advocates, be they even employees of the Govt. are officers of the Court.

 

State. Vs. Edward Snelson (1961) 13 DLR (WP) 14.

 

Advocates accepting briefAdvocates who accepts a dock brief and undertakes to defend an accused of capital offence without trying to know anything about the case offends against the tradition of his profession. To ask for time and pray for adjournment where at last moment appointment is made to defend an accused involved in a murder case.

 

Abdur Rashid vs. The State (1975) 27 DLR (SQ-1.

—Advocate appointed at Govt. expense to defend an accused of capital offence-Duty which he should be careful to observe.                         

 

—Advocate-right of being heard- The right of a counsel to being heard adequately, in a trial or in appeal given by statute, is an indefeasible right which cannot be transgressed by Courts of justice. It is one of the universal rules of natural justice the breach of which renders a judgment inoperative, irrespective of there being or not being a miscarriage of justice. (Akram, J.)

 

Imranulla Vs. Crown, (1954) 6 DLR (FC) 65 (67).

(Cornelius, J.) The duty and function of an Advocate before an Appellate Court is to lay the case for his client before the Court to the best advantage, and such matters as the method of exposition of the case, or of the errors in the judgment under appeal, are entirely within his discretion.

 

Consistently with their duty of control and discipline appellate Courts should do nothing that might have the effect of terminating an Advocate's arguments unless they have first satisfied themselves by a direct question that he cannot add to what, he has already said.

 

Imranulla Vs. Crown, (1954) 6 DLR (F.C) 65 (79)

 

-Advocate (in his professional duty in the Court) should refrain from using language which is likely to lower the reputation of the Court. This is not the same thing as pointing out an error in judgment of a Court while invoking the jurisdiction of a superior Court to correct the error.

 

S.M. Huq Vs. Hon'ble Judges, (1953) 5 DLR (FC) 219 (226).

 

—Advocate. The great importance of securing to counsel the enjoyment of independence and ample latitude in the performance of their difficult duties in Courts cannot be doubted, and the High Court should vigilantly arid zealously safeguard the privileges of the Bar in this behalf. The Court would certainly have no desire to shut out any grounds open to a litigant or his counsel, but it cannot, at the same time view with equanimity any attempt to lower its dignity or to bring it into contempt.

 

S.M.Huq, In the matter of (1953) 5 DLR (WP) 88(95).

1809

Affidavit

Citation: (1976) 28 DLR 172, (1976) 28 DLR 259, (1973) 25 DLR 335.

Subject: Affidavit

Delivery Date: 2018-08-12

Affidavit

 

When sworn on behalf of a superior authority by a subordinate officer. An affidavit on behalf of a superior authority can be sworn and filed by any subordinate officer who is duly authorised and who has personal knowledge of the matter as well. A subordinate officer of the Government who is conversant with the relevant facts of a case is competent to swear affidavits on those facts on behalf of his Superior Officer, if so authorised. Moreover, the rules and practices for swearing affidavits in writ petitions, and in applications u/s. 491 Cr.P.C. are not the same.

 

Md. Mukhlesur Rahman, Vs. The State (1976) 28 DLR 172.

-Determination of matters on affidavit sworn by persons competent to do so. Under the Rules of the High Court instead of taking oral evidence of the parties ordinarily such matters are decided on affidavits. Affidavit is evidence by order of the Court. Competence of the deponents must be the person competent to depose before the court.

 

Md. Humayun Kabir 7s. The State (1976) 28 DLR 259.

 

Affidavit on oath-Facts stated therein not controverted by countcr-affidavit-Courls have no option but to accept them as correct.

 

A. T. Mridha Vs. The State, (1973) 25 DLR 335.

1810

Age

Citation: (1978) 30 DLR 187, (1975) 27 DLR SC1, (1956) 8 DLR 25 (PC).

Subject: Age

Delivery Date: 2018-08-12

Age

 

Determination of the age of a girl whether she is minor or not within the limit of the age mentioned in S. 361 of the Penal Code. Two doctors who examined the girl gave two different ages as to her age. In such a case the matter should be reported to a 3rd doctor for determination of her age. In the meanwhile it is ordered that the girl may stay where she likes.

 

Babul Miah Vs. State (1978) 30 DLR 187.

 

accused and failure on the part of the defence to substantiate any plea taken by it does not necessarily prove the guilt of the accused.

 

Abdur Rashid Vs. State (1975) 27 DLR SC1.

-The defence of the accused were twofold, (a) plea of alibi and that the (b) accused acted under compulsion. If the judge is precluded from considering defence of compulsion because of the defence of alibi.

 

Khotso Sephakelail Vs. Queen (1956) 8 DLR 25 (PC).

1811

Alibi

Citation: (1950) 2 DLR (PC) 39, (1966) 18 DLR (SC) 444

Subject: Alibi

Delivery Date: 2018-08-12

Alibi

 

The tendency to include the innocent with the guilty is peculiarly prevalent in India; and it is very difficult for the court to guard against such danger. An Indian villager is seldom in a position to produce cogent evidence of alibi.

 

Bhubani Vs. King (1950) 2 DLR (PC) 39 (45 l.h.col. bottom).

 

-Alibi-plea of alibi without calling evidence in support of it is no pica at all.

 

State Vs. Monzoor Ahmed, (1966) 18 DLR (SC) 444.

 

--Alibi, plea of—If not substantiated, whether tells upon the defence case. It is to be remembered that if the plea of alibi is not believed, it does not necessarily follow that the prisoner committed the murder. The prosecution is to prove the guilt of the

1812

Arms Act (XI of 1887).

Citation: (1961) 13 DLR (SC) 66, (1986) 38 DLR 382, (1969) 21 DLR 684, (1975) 27 DLR 251, (1972) 24 DLR 48, (1974) 26 DLR 297, (1969) 21 DLR (WP) 175, (1956) 8 DLR (SC) 128, (1962) 14 DLR 597,

Subject: Arms

Delivery Date: 2018-08-12

Arms Act (XI of 1887).

 

S. 17Section does not delegate powers of legislative authority to the executive authority. It was contended that in so far as section 17 of the Arms Act purports to give the Central Government the power to make rules for laying down the terms arid conditions on, and subject to^ which licences may be granted without indicating anything more amounts to giving power of legislation to the executive authority.

 

In enacting section 17 of the Act the legislative authority could, in no sense of the term, be said to have abdicated or effaced itself or created a new legislative body or legislature beyond its competence.

 

The legislature, while retaining its legislative powers in tact and maintaining its full legislative control authorised the executive merely to determine the manner of carrying it into effect by rules framed. District Magistrate,

 

Lahore Vs. Syed Raza Kazim (1961) 13 DLR (SC) 66.

 

-Power to prescribe terms and conditions of license does not mean power to give discretion as the cases in which licence shall be granted or refused.                                                 

 

S. 18-Licence to possess fire arms-Just a conferment of a privilege-So long as the licencee does not violate the conditions of licence he has a right to possess the arms.

 

Sk. AH Ahammad Vs. Secy, Ministry of Home Affairs. (1986) 38 DLR 382.

 

--The authority cancelling the licence should state that it deems it necessary for'&ecurity of public peace" to take the action-T'he licencee not entitled to a show-cause notice before the cancellation order.

 

Sk. Ali Ahammad Vs. Secy, Ministry of Home Affairs. (1986) 38 DLR 382.

 

Sec. 19. cl. (f)--Mere knowledge of the accused that the arms or ammunition was lying at the spot pointed by him, in the absence of evidence or circumstances to show that he had exclusive possession over that spot or that none else had access to that spot, cannot make one liable for conviction under section 19 of the Act.

 

Arshadullah Vs. State (1969) 21 DLR 684.

 

S. 19(1):-Recovery of Arms—Possession and control' explained. It was contended on behalf of the State that the recovery of gun from the accused person's courtyard necessarily means recovery of the gun from their possession. Held: This contention cannot be upheld for acceptance of this proposition without objective analysis will lead to dangerous consequences. Recovery of an article from a well in courtyard or for that matter, from a panboroj or kitchen garden, is different from recovery from a dwelling hut in that persons other than inmates of the hut have access thereto.

 

Pair Baksha Vs. State (1975) 27 DLR 251.

Sec. 25.-An order of seizing arms under sec. 25 of the Arms Act can validly be made in a proceedings under Sec. 107 Cr.P.C.

 

Majibar Rahman Mallik Vs. Tabarak Majhi (1972) 24 DLR 48.

 

S. 25 : Search under the section- How the search is to be conducted "Necessity underlying the precaution". Two limitations have been prescribed by section 25 of the Arms Act; first, a Magistrate who has been empowered to issue search warrants for the seizure of arms illegally possessed by somebody who can not be allowed to possess it without danger to public peace must record the grounds of his belief; and secondly, the Magistrate himself or any officer specially empowered by the Government should be present when the search is being conducted. Further restrictions are imposed by section 30 of the Act before any search is to be conducted for recovery of arms illegally possessed. These provisions are aimed at to protect the citizens against frivolous or motivated searches which are conducted on mere suspicion and also to create confidence in the minds of the public regarding the impartiality of the police officer.

 

Panchu Vs. The State (1974) 26 DLR 297.

 

-Sec. 27 : Exemptions granted under section 27 of the Arms Act, 1878 to a Central Minister in his name by Government Notification are exemptions granted, not by virtue of his office as a Central Minister but in his name personally. Exemptions were granted to Zulfikar Ali Bhutto under section 27 of the Arms Act, 1878 in the following terms: "The Central Government is pleased to exempt Mr. Zulfikar Ali Bhutto, Minister for Fuel, Power and Natural Resources, Government of Pakistan, from the operation of the prohibitions and directions contained in sections 13 to 15 of the said Act in respect of the arms specified in the schedule below.

 

When the petitioner ceased to be a Minister of the Central Government the exemptions granted to him earlier were rescinded by another notification. The petitioner challenged the validity of this latter notification and it was Hcld: The mention in the notification of the petitioner being a Minister was merely to give description and that description varied with his portfolio as would be seen in the two notifications. Both these notifications were deliberately issued and they were effective and would remain so until duly cancelled. Under them the exemption to the petitioner was in his name.

 

Z.A. Bhutto Vs. Govt. of Pakistan (1969) 21 DLR (WP) 175.

Arrest (unauthorised)- The mere fact that a person has been arrested in an unauthorised manner does not generally affect the jurisdiction of the Tribunal, before which he is brought for trial, to try him according to law. 

 

M.S.K. Ibrat Vs. in Chief (1956) 8 DLR (SC) 128. Assam Municipal Act (1 of 1923) S. 194(3).

Once the provisions of section 194 are adopted by a Municipality, the prohibitions mentioned in the section come into force within the area of that Municipality and no further declaration is necessary in regard to the prohibitions mentioned in the section and the resolution.

 

Pareshnath Chakraborty Vs. Dewan, M.H. Obaidur Raja Chowdhury (1962) 14 DLR 597.

 

-A drain which runs through private land but is used for public purposes and maintained by the Municipality is a public drain within the meaning of the section. The public and private character of a drain within the meaning of the Act, will depend upon the answer to the question as to who use it. If it is used by the public in general or a section of it the drain is public but if it is used by the owners thereof exclusively, it is private drain.

 

Pareshnath Chakraborty vs. Dewan M.H. Obaidur Raja Chowdhury (1962) 14 DLR 597.

1813

Art. 13 (Art. 3 of the Collaborators Order)

Citation: (1973) 25 DLR. 335, (1974) 26DLR(SC)17, (1973) 25 DLR 335, (1974) 26 DLR (SC) 17, (1976) 28 DLR. 3, (1973) 25 DLR 207, (1976) 28 DLR 103, (1975) 27 DLR '93.

Subject: Collaborators

Delivery Date: 2018-08-16

Art. 13 (Art. 3 of the Collaborators Order)

 

In interpreting Article 13 of P.O. 50, the Court has observed as follows :

 

(a)    Whenever a scheduled offence is committed the investigating agencies are to commence investigation.

 

(b)   After collection of sufficient materials if the police officer reasonably suspects that the materials are enough to connect a person with the crime he will cause his arrest.

 

(c)    The police officer thereafter shall forthwith report such arrest to the Sub-divisional Magistrate with precis of information or materials on the basis of which the arrest has been made. No mechanical application of law will be sufficient to claim immunity from attack in a court of law. The police officer must give the facts and those facts must be the basis of his arrest.

 

(d)   The Sub-divisional Magistrate will then consider if the materials are sufficient to warrant an order of detention of the arrested person. If the materials are sufficient he will pass necessary order in writing thereby giving his reasons for detaining the person. Should he think that the materials are not sufficient he can give direction to make further investigation and to expedite the investigation within a reasonable period. What will be the reasonable period, will depend on the facts of each individual case. If the Sub-divisional Magistrate thinks that no prosecution can be launched against the person arrested, he will pass an order of discharge of the arrested person. Otherwise Art. 13(2) become meaningless. On the onclusion of inquiry or investigation the accused may be forwarded to the Special Tribunal or the Special Magistrate, as the case may be, for taking cognizance of the case, if the Subdivisional Magistrate thinks that sufficient materials are available for which the person arrested must face his trial. The order of the Magistrate must be a 'speaking order' so that the superior Courts can understand as to what led the Magistrate to pass the order in question.

 

A. T. Mridha Vs. State. (1973) 25 DLR. 335.

 

Article 13. -Use of the expression "remanded to custody" by the Sub-divisional Magistrate does not make it an order similar to one u/s. 167(2) Cr.P. Code and does not render the order a judicial one.

 

Article 13 of P.O. 50 does not require the production of the arrested persons but since, in the instant case, the respondents were actually produced before the Sub-divisional Magistrate, he remanded them to custody, namely, sent them back to the custody, from which they were produced. Solicitor,

 

Government of Bangladesh Vs. A. T. Mridha (1974) 26DLR(SC)17.

 

Article 13. Subdivisional Magistrate performs judicial function and not administrative function while acting under Article 13 of P.O. 50 of 1972 and as such amenable to the jurisdiction of the High Court.

 

A.T. Mridha Vs. The State (1973) 25 DLR 335.

 

—Its provision to be strictly construed. It is the liberty of the citizens that was in the anxious consideration of the Legislature and therefore in its wisdom the legislature intended the Police officer should immediately report the arrest to the SDM and also with the precis of information or materials on the basis of which the arrest had been made.

 

A.T. Mridha Vs. the State (1973) 25 DLR 335.

 

Article 13(3): An order passed by a Sub-divisional Magistrate under article 13, clause (3) is an administrative order and not a judicial one passed during the state of inquiry or investigation by an officer designated for the purpose and as such, such an order is not open to the revisional jurisdiction of the High Court under sections 435 and 439 of Cr.P.Code. Solicitor,

 

Government of Bangladesh Vs. A.T. Mridha. (1974) 26 DLR (SC) 17.

 

Art. 13(5): If clause (5) of Art. B of P.O. 50 of 1972 authorises trial of offences committed before P.O. 50 of 1972 came into operation-it came, into effect on 1.2.72-it is then retrospective in operation and since the Order does not say that clause (5) shall be retrospective, it must be held to be prospective and as such trial under the Order for offences committed before it came into operation is without jurisdiction.

 

Anwarul Amin Chowdhury Vs. The State (1976) 28 DLR. 3.

 

Articles. 13 & 10. Arrest on suspicion—Refusal of bail-- Court's interference. Refusal of bail to a person arrested on suspicion of having committed a scheduled offence. Suspicion must be on reasonable grounds - Lack of it takes the   l case out of the purview of the order and bail can not   be refused. Investigation lasting for five months yielding no materials to justify continuance  of arrest, amounts to abuse of the process of the Court -The man can not be treated as an accused -proceedings quashed for ends of justice and the man set at liberty.

 

A.T. Mridha Vs. State (1973) 25 DLR 335.

 

Art. 15: Special Magistrate acting under P.O. 50 of 1972 is not a Court subordinate to the Sessions Judge and any order of discharge passed by the Special Magistrate is not amenable to the jurisdiction of the Sessions Judge acting u/s. 436 1 Cr.P. Code. Sunili Bikash Das Vs. State (1977) 29 i DLR 30.

 

-Art. 16(2) (Art. 10 of the Scheduled Offences Order). Man tried under the, Collaborators Order acquitted - High Court admits an appeal against acquittal, but if an order to 'I keep the acquitted person in custody without releasing him is not secured by the Public Prosecutor, as provided by Art. 16(2) of the Order, the High Court, if moved to issue warrant for his arrest under section 427, Cr.P.Code, will do so, not upon the view that whenever an appeal against acquittal is admitted the acquitted man must remain, as before, in custody, but on the principle, as indicated as section 427, that warrant of arrest should issue in the interest of justice and not otherwise. In this case since the High Court is not satisfied that the man's arrest should be effected, no order to that effect will be passed. Ulike section 427, Article 16(2) does not provide as to how a man released from custody should be arrested.

 

The State Vs. Muhammad Hussain, (1973) 25 DLR 207.

 

Art. 19(a) and 19(f): To lay a charge for an offence under the Arms Act, it is necessary to show that the offences have been committed as required under P.O. 50 of 1972.

 

ASM. Afzal Hossain Vs. The State (1976) 28 DLR 103. .

Art. 36(2)(b): P.O. 50 of 1972 having been repealed from 9.2.74 and no charge-sheet (in this case) having been submitted before that date, no offence under that Order will any longer be triable by any Special Magistrate.

 

Abu Tayab Md. Mashood & Tipu Vs. The State. (1975) 27 DLR '93.

 

 

1814

Assessors

Citation: (1967) 19 DLR (SC) 242, (1951) 3 DLR (FC) 408 (425), (1951) 3 DLR (FC) (408) (425) (415), (1977) 29 DLR 366, (1980) 32 DLR (AD) 177, (1950) 2 DLR (FC) 151.

Subject: Assessors

Delivery Date: 2018-08-12

Assessors

 

As provided by section 272 of the Code, the assessors come on the scene only if accused refused to plead or pleads not guilty or claims to be tried. Till the trial eommences within the meaning of section 271 of the Code, no vested right accrues to the accused, to be tried according to the procedure laid down under the Code. If before that contingency arises, the Legislature intervenes and changes the procedure, the new procedure should become applicable to the trial.

 

Md. M. Alam Vs. The State, (1967) 19 DLR (SC) 242.

-Trial (I) without aid of assessors; 2) without the minimum number required by law. There is no real distinction in principle between a trial without the aid of assessors and a trial without the minimum required by law.

 

Once the requisite number of assessors are found not to be present when the trial commenced, the assessors must, as a body, be deemed to be absent or non-existent in the eye of law. The legal effect in both the cases is the same and in both the cases the trial must be held to have taken place without the aid of assessors.

 

(Abdur Rahman, J.,-With whom Akram, J.,-in a separate judgment, agreed.). Md. Haroon Vs. Crown (1951) 3 DLR (FC) 408 (425).

 

- The trial having been held with the aid of four assessors of whom two were competent to act as assessors and the other two not competent to act, the trial cannot be described as one held without the aid of assessors but was one held with the aid of four assessors of whom two were not competent to act as assessors. The tribunal as such was not legally constituted and the whole trial has thereby been vitiated.

A trial with the aid.of incompetent assessors is an illegality and not a mere irregularity. Such an illegality cannot be cured by merely ignoring the presence of two of the four assessors.

 

If a person who is incompetent to act as an assessor acts as such, the whole trial is vitiated. The opinion which he gives amounts to such a disregard of the norms of justice as to lead to substantial and grave injustice.

 

(Abdur Rashid, C. J., disagreeing with the views of Abdur Rahman and Akram. JJ.). Md. Haroon Vs. Crown (1951) 3 DLR (FC) (408) (425) (415).

 

-Unanimous opinion—When assessors unani­mously came to the conclusion that the accused was not guilty of the charge framed against them and though a judge need not conform to the opinion expressed by the assessors it is always advisable for him to give very strong and convincing reasons in his judgment for disagreeing with them.

 

M. Shuaib Vs. Crown 1 Pak. Cr. Reporter 30.

 

Attempt   to   Commit   an   offence.- Act constituting attempt need not be criminal by itself-Attempt to export 35 bags of wheat bran from Rawalpindi to Kohat in violation of -Punjab Foodgrains (Export control) Order. Attempt to complete when intention to export was proved though Motor truck had only covered 20 miles out of a distance of 119 miles between the two places.

 

Crown vs. Naseer (1955) 7DLR (WP) Lahore 106.

 

Autrefois acquit—To invoke the principles of autrefois acquit as laid down u/s. 403 of the Cr.P.C. and in order that the said principles may apply, the essential ingredients is that the same issue which arises in the present trial was raised and decided in the former trial.

 

State Vs. Gopinath Chose (1977) 29 DLR 366.

- Whether having been prosecuted once on a certain set of facts a man can be prosecuted again depends entirely on whether at the earlier trial, he was in jeopardy of being convicted of the offence for which he is tried or sought, to be tried at the later trial. If he was not, the subsequent trial may proceed.                                                     

 

Autre fois acquit and autre fois convict' explained. The doctrine of previous acquittal or previous conviction known in English Common Law as autre fois acquit or autre fois convict has been embodied within the language of sec. 403(1) of the Cr. Procedure Code. The underlying principles is that if a person has been tried by a competent court for an offence and has been either convicted or acquitted of such offence he shall not be tried again for the same offence or on the same facts for any other offence for which a different charge might have been made under section 236 or he might have been convicted under section 237 of the Code. Gopinath

 

Ghose Vs. State (1980) 32 DLR (AD) 177.

 

-A plea of autrefois acquit or autrefois convict can only be raised where the first trial was before a court competent to pass valid order of acquittal or conviction

 

YusufAli Vs. King (1950) 2 DLR (FC) 151.

 

1815

BANGLADESH CITIZENSHIP (TEMPORARY PROVISIONS) ORDER (P.O. 149 of 1972)

Citation: (1975) 27 DLR 622.

Subject: BANGLADESH CITIZENSHIP

Delivery Date: 2018-08-14

BANGLADESH CITIZENSHIP

(TEMPORARY PROVISIONS)

ORDER (P.O. 149 of 1972)

 

Art. 2.  "Permanent resident", defined. Article 2 makes it clear that any person who or whose father or grandfather was born in the territories of Bangladesh and who was a permanent resident of such territory on the 25th March, 1971 continues to be a citizen of Bangladesh.

 

Bishal Deo Tewari Vs. State (1975) 27 DLR 622.

1816

BANGLADESH COLLABORATORS (S.T) ORDER (8 OF 1972)

Citation: (1982) 34 DLR 404, (1974) 26 DLR (S.C.) 12

Subject: BANGLADESH COLLABORATORS

Delivery Date: 2018-10-01

BANGLADESH  COLLABORATORS (S.T)  ORDER (8 OF  1972)

 

Arts 2(b)(i)  &  2(b)(ii) read  with  Part IV (b) of the Schedule. The accused can be convicted for collaboration simpliciter with the Pakistan Army. Obaidullah Vs. State (1982) 34 DLR 404.

 

-—Articles 8(1),  14 and  16.

Provisions of s.427 of the Code are unaffected by Articles 8(1), 14 and 16 of the Order, On a careful consideration of section 427 of the Code and Articles 8(1), 14 and 16 of the Collaborators Order we are of the view that the .discretionary jurisdiction of the High Court Division 'under section 427 of the Code, which relates to persons who have been acquitted after having gone through the ordeal of a trial has been advisedly preserved by the law-maker. SupdL & Remembrancer of LA.Vs. Jobed All (1974) 26 DLR (S.C.) 12,

1817

Bangladesh Collaborators (ST) Order

Citation: (1975) 27 DLR 334, (1975) 27 DLR 437, (1982) 34 DLR 404, (1983)35 DLR 41, (1974) 26 DLR (SC) 14, (1974) 26 DLR 1, (1974)26 DLR 180C, (1974)26 DLR 183, (1976) 28 DLR 305, (1976) 28 DLR 320, (1975) 27 DLR 334, (1974) 26 DLR 241, (1975) 27 DLR 517, (1975)

Subject: Bangladesh Collaborators

Delivery Date: 2018-08-14

Bangladesh   Collaborators   (ST)   Order

 

(P.O. 8 of 1972)-Collaborators Order., with regard to the powers of the High Court, contains the provisions similar to those made in President's Order No. 50 of 1972, and in this regard these two enactments can be compared and referred to and so the same reason will apply in interpreting the relevant provisions of this Order, as well.

 

Mashiur Rahman Vs. The State (1975) 27 DLR 334.

 

--Art. 2: Collaborator as defined in article 2 of P.O. 8 of 1972 means that the persons concerned must have participated or aided or abetted the occupation army in maintaining, sustaining, strengthening, supporting or furthering the illegal occupation of Bangladesh by such army, must have rendered material assistance in any manner to the occupation army or to have waged or abetted in waging war against the People's Republic of Bangladesh, actively resisted or sabotaged the efforts of the people and the liberation forces of Bangladesh in their liberation struggle against the occupation army by a public statement or by voluntary participation in propaganda within and outside Bangladesh or by associating in any delegation or committee or by participation in the purported bye-elections attempted to aid or aided the occupation army in furthering its design of perpetrating its forcible occupation of Bangladesh.

 

Lulfur Mridha Vs. The State (1975) 27 DLR 437.

 

—When a person can be said to have collaborated in order to make it an offence under the Order—charge- sheet must furnish the particulars of the offence of collaborator—There is no mention in the F.I.R. that the crimes alleged to have been committed were so committed either in company or on the investigation, or for the purpose of aiding or abetting the occupation army. In the charge-sheet not a word or act which can be calculated to come within the , meaning of word collaboration as given in article 2 has been mentioned. Merely mentioning of article 11 (a) of P.O. 8 of 1972 does not itself bring the offence within the mischief of the President's Order unless materials are furnished in the charge-sheet to show the act of collaboration as defined in article 2. In the absence of such information cognizance can not be taken of an offence.

 

Lulfur Mridha Vs. The State (1975) 27 DLR 437.

 

Arts. 2(b)(i) & 2(b)(ii) read with Part IV(b) of the Schedule. An accused can be convicted for collaboration simpliciter with the Pakistan Army.

 

Obaidullah Vs. Stale (1982) 34 DLR 404.

 

Article 2(b)(v) has two parts. The first part comprises the act of association with a committee or participation in a purported bye- elections, and the second part comprises the mensrea, namely '"attempted to aid or aided the occupation Army in furthering its design of perpetrating its forcible occupation of Bangladesh." Unless the prosecution succeeds in establishing the second part, association with a committee perse is noof-fence. The mental element i.e. guilty knowledge or guilty mind of the accused is very.much relevant for consideration as to whether the charge has been sucessfully established or not.

 

Saad Ahmed Vs. State (1983)35 DLR 41.

 

--Art. 2(b)(v) : Police statement to the effect that the accused-filed nomination paper to contest the purported bye-election together with mentioning the article under which that offence falls enables the Special Tribunal to take cognizance of the offence. In the instant case the charge-sheet contains the statement of fact that the petitioners filed nomination papers on a particular date in connection with a particular "purported" bye-election from a particular constituency. The charge-sheet has also cited the penal provision which read with the statement that the petitioners filed the nomination papers, has given a clear indication of the nature of the information against the petitioners, namely, th'at they are alleged to be collaborators within the meaning of article 2(b)(v) of the Collaborators , Order.

 

Hafez Maulana Md. Nooruddin Vs. State (1974) 26 DLR (SC) 14.

 

—Filing of a nomination paper shows that participation in the bye-election has taken place. Filing of a nomination paper cannot be disputed to be a step taken with a view to contesting an election. It cannot, therefore, be disputed that the mere filing of a nomination paper amounts to participation in such bye-elections. The contention founded on an alleged defect in the charge-sheet thus fails.

 

Hafez Maulana Md. Nooruddin Vs. State (1974) 26 DLR (SC) 14.

-Filing of nomination paper in 1971 bye-election under duress not hit by sub-clause (v) of art. 2 and therefore not an offence.

 

Abdur Rahman BakaulVs. State (1974) 26 DLR 1.

 

--Participation in the bye-election of 1969*It's connotation explained. Facts found clearly establish that the nomination paper of the accused in connection with the bye-election which was to be held in 1969 was duly filed with the Returning Officer, but the question when the purported bye-election was not in fact held can it be said that the accused had participated in the said bye-election within the meaning of the word in Article 2(b)(v) of the Collaborators Order. Held: When a bye-election has not been held it cannot be said that there was a bye-election in which one can participate.

 

Mir Md. Shoeb Vs. State (1974)26 DLR 180C.

 

--'Men s red' or guilty.mind of a person charged with the offence of 'participation', in the purported bye-election of 1969 is clearly in issue in trial under the Collaborators Order and if the prosecution fails to establish positively that the accused by his participation had the guilty intent of what has been specified in article 2(b)(v) of the Order prosecution must fail and where the facts and circumstances brought out from the evidence of a prosecution witness and examination u/s. 342, Cr.P.Code show thatdie accused was coerced to be a candidate and in filing nomination paper in the election with a final declaration of his election he cannot be held guilty on a charge of 'participation' in the election and must therefore be acquitted.

 

A.F.M. Nazmul Huda Vs. The State (1974)26 DLR 183.

 

Article 2(b)(v) read with article II.

-Unless men rea or guilty knowledge is established, the burden of which lies on the prosecution-there cannot be any conviction for collaboration under article 11 of the Order.

 

A.F.M. Nazmul Huda Vs. The State (1974)26 DLR 183.

 

--What the prosecution must establish in a case falling under article 2(b)(v) is that the accused was actuated with a guilty mind or knowledge that what he was doing was against the interest of the independent Bangladesh Government and die people.

 

A.F.M. Nazmul Huda Vs. The Slate. (1974) 26 DLR 183.

 

--The mental element, that is, guilty knowledge or guilty mind of the accused is very much relevant for consideration as to whether the charge has been successfully established or not—Participation (in election) per se is no offence.

 

A.F.M. Nazmul Huda Vs. The State (1974) 26 DLR 183.

 

-Participation-explained..

The word 'participation' includes the element 'violation'; in the participation involuntary participation cannot be said to be participation within the meaning of sub-clause (v).

 

A.P.M. Nazmul Huda Vs. The State (1974) 26 DLR 183.

 

--In respect of nomination paper on the occasion of the bye-election in 1969 the action of the proposers and seconders cannot be treated as participation in the election and as such charge of collaboration levelled against them is misconceived, and the same is liable to be set aside. Element of mens rea, if a necessary ingredient for a conviction under the order.

 

A.P.M. Nazmul Huda Vs. The State (1974) 26 DLR 183.

 

The present statute (i.e. P.O. 8 of 1972) is not violajtive of the cardinal principles of criminal law, that is, the trial should take place in accordance with the due process of law.

 

A.F.M. Nazmul Huda Vs. The State (1974) 26 DLR 183.

 

—Offences specified in Art 2(b) are not absolute in character or "statutory offences". It is a misnomer to say that some new offences have been created under article 2(b) read with Part IV of the schedule to the Order with retrospective effect. The Order makes punishable some unjust and immoral actions of certain persons in the period between declaration of independence by Bangladesh and final liberation of Bangladesh on December 16, 1971. There is no scope of collaboration in the post-liberation period. Therefore, the offence of collaboration made punishable under the order cannot be described as absolute in character, in order words, "Statutory offence".

 

A.F.M. Nazmul Huda Vs. The State (1974) 26 DLR 183.

Art. 2(b)(v) read with Part Y (b) to the Schedule. Mens rea must be proved for conviction under Article 2(b)(v).

 

Saad Ahmed Vs. State (1983) 35 DLR 41.

 

Art. 3 : Detention without a valid order': illegal.    Held : We have looked into the record of the case but have been unable to find any order in this record which niay be taken to be a valid order for detaining the petitioners in custody.

 

Belayet Hossain Vs. Deputy Commr. Barisal (1976) 28 DLR 305.

 

 

Art. 3(1):- Reasonable suspicion-­Power of the Court. Whenever power or a particular body on authority is conferred and its exercise is qualified by the word 'reasonable' it has been held by a long line of authorities that such exercise of powers must be performed on proper materials, and the exercise of power shall be subject to judicial review. Mashiur Rahman Vs. State (1975) 27 DLR 334.

 

-Reasonable suspicion—Implication of this expression explained. What could or could not be the reasonable suspicion is a question of fact that it will depend always on the facts peculiar to each case. But this much is certain, that there must be some grounds on which a reasonable man and a reasonable court might come to the conclusion that there were materials sufficient for the officer to exercise his power, and they were relatable to the offence committed and they manifestly connect the suspect with the offence.

 

Mashiur Rahman Vs. State (1975) 27 DLR 334.

 

-Arrest must be on materials raising suspicion. The arrest of the detenu : by the police without warrant was not justified in view of want of necessary materials to raise reasonable suspicion that he was a collaborator. Clause (1) of article 3 of the Collaborator's Order empowers a Police Officer to arrest any person without warrant who is reasonably suspected of having been a collaborator. Suspicion of the Police Officer must be based on definite facts. It cannot be the ipse dixit of the Police Officer.

 

Maimunnessa Vs. The State (1974) 26 DLR 241.

 

Art. 3(1)(3): "Reasonably be suspected,"--explained. The expression "reasonably be suspected" must be based on definite facts to be considered by the Subdivitional Magistrate as provided in clause (3), and the expression has been examined by the Superior Courts in connection with detention cases wherein it has been laid down that such expression has been incorporated in the rules with the intention to preserve the liberty of the subject and to provide a safeguard against unlawful or improper manner of detention and that such -provision should be construed so as to advance the remedy and to suppress the mischief, a well-recognised principle of construction. The expression "had reasonable grounds to believe" should be treated as meaning that there must, in fact, exist such reasonable grounds known to the authority before.he can validly exercise the power.

 

Maimunnessa Vs. The State (1974) 26 DLR 241.

 

Art. 3(2) :- Precis of the information or materials is not the same thing as the forwarding note of the police officer-Detention on the basis of such note, not legal.

 

Maimunnessa Vs. The State (1974) 26 DLR 241.

Art. 3(3) :- Authority to detain a person for the initial periods of 6 months is exclusively given to the Sub-Divisional Magistrate and not to one who might be doing S.D.M's routine work in his absence.

 

Maimunnessa Vs. The State (1974) 26 DLR 241.

 

Art. 3(4) :-Initial period of 6 months' detention can be extended by the Government-When no such order is passed, further detention illegal.

 

Belayet Hossain Vs. Deputy Commissioner, Barisal (1976) 28 DLR 305.

--Initial detention of 6 months not extended by Government, further detention unlawful. Initial detention beyond 6 months was not extended by any order of the Government for further investigation of the present case. Absence of such order coupled with the non-submission of the charge-sheet renders a detention illegal.

 

Shahidullah Vs. The Stale (1975) 27 DLR 517.

 

--Govt. can extend the period of detention for once only-Penal statutes should be constructed strictly.

Penal statute which deprives citizen of his liberty which is a most cherished and valuable right and as such a strict interpretation is called for and therefore no word should be imported into the language of the statute to give it an extended meaning cannot be given in derogation of the liberty of the subject. Clause (4) of article 3, therefore, has given the Government to extend the time for once only.

 

Mashiur Rahman Vs. State (1975) 27 DLR 335.

 

-What the Government can extend is "further time" of the period of detention which is required for the completion of enquiry or investigation. The phrase "further time" has relation to the "period of 'detention" in the earlier clause of the sentence. Unless we introduce some such word as 'further times' or from time to time, we do not think any interpretation is open other than that the Government can extend the period for once only.

 

Mashiur Rahman Vs. State (1975) 27 DLR 335.

 

Art. 3(9) .--Detention by S.D.M's order for initial period of six months. The plain language of the Statute is that the initial period of detention shall be six months. The power of detention conferred on the Sub-Divisional Magistrate is the period of six months. How this power is to be exercised has not been clearly defined and therefore, left to his judicial discretion.

 

Mashiur Rahman Vs. State (1975) 27 DLR 335.

 

Article 4 read with art. 2(b). Unless a person is accused of committing an 'offence of collaboration as defined in article 2(b) Special Tribunal or Special Magistrate can not try him under P.O. 8 of 1972.

 

There is no allegation that the accused in the present case is a collab trator as defined in Article 2 clause (b). In the absence of any specific allegation of a person's being a collaborator merely because an offence has been committed which comes within the Schedule to the President's Order No. 8 of 1972 it ean not be said that the offence becomes triable by the Special Tribunal or the Special Magistrate appointed for the puipose.

 

Abdul Khaleque Vs. State (1975) 27 DLR 432.

 

Art. 4(4)-Further time means another period of 6 months and not more. The plain meaning of the words further time mean any period indefinite in point of duration, couldsthat extended meaning be given to clause (4) of article 4 of P.O. 8 of 1972. To give such meaning instead of furthering the cause of justice and liberty would defeat it. It cannot be said that the legislative authority contemplated to confer on the Government such wide and arbitrary power. The legislative authority when it fixed the period of initial detention, fixed it at six months. It cannot be said that when it left to the discretion of the Government to extend, it conferred on it a power more extended than itself has imposed under clause (3).

 

To yield to this interpretation will amount to this that after the initial period of six months all that the delegated authority is to do is to pass an order extending the period of detention in a language indefinite in point of duration which might be co,-terminus with eternity. The legislative authority did never contemplate to bring about such an absurd and harsh result.

 

Mashiur Rahman Vs. State (1975)"27 DLR 334.

 

—Further time means another period of 6 months and not more.

 

Mashiur Rahman Vs. State (1975) 27 DLR 334.

 

—No, power is available either in the Government or its delegate, to extend the further period of detention under clause (4) of article 4, as such powers have been exhausted. In this view of the matter, the detention of the petitioner after 12.3.73 is illegal and without jurisdiction.

 

Mashiur Rahman Vs. State (1975) 27 DLR 334.

 

Art. 8(1) : Withdrawal of prosecution is permissible in a case pending under the Collaborators Order.

 

Govinda Shedjamadar Vs. The State (1975) 27 DLR 67.

 

Articles 8(1), 14 and 16. Provisions of S. 427 of the Code are unaffected by articles 8(1), 14 and 16 of the Order.

 

On a careful consideration of section 427 of the Code and articles 8(1), 14 and 16 of the Collaborators Order we are of the view that the discretionary jurisdiction of the High Court Division under section 427 of the Code, which relates to persons who have been acquitted after having gone through the order of a trial has been advisedly preserved by the law-maker. Supdt. & Remembrancer of

 

L.A. Vs. Jobed Ali (1974) 26 DLR (S.C.) 12.

 

Art. 9. Trial in absentia authorised under article 9(1) of P.O: 8 of 1972 cannot be legally held unless it is proved that the accused has absconded and there is no immediate prospect of-arresting him before the Court which is trying the accused in absentia-where this is not done, trial illegal and the accused must be set at liberty.

 

Kitab Alt Talukdar Vs. State (1976) 28 DLR 128.

 

--Article 9(1) of P.O. 8 of 1972 cannot override the provisions of S.512(1) of the Criminal Procedure Code.

 

Kitab All Talukdar Vs. State (1976) 28 DLR 128.

 

Article 9(5). Appointment of a Lawyer to defend an undefended accused by the Court should ensure that adequate time is given to the lawyer to prepare the defence-one day's time for preparation not 'enough.

 

The State Vs. Munna (1975) 27 DLR 28.                            

 

—The appointment should be made at such stage of the trial when the lawyer will have adequate opportunity to prepare the defence case and also if necessary to consult the prisoner. One day's time which was available to the lawyer appointed by the Court can hardly be considered as sufficient for the preparation of the case which involved capital punishment.

 

The State Vs. Munna (1975) 27 DLR 28.

Art. 10(A) : Circumstances when a post mortem examination becomes a relevant matter even in a trial under P.O. 8 1972.

 

In clause (a) of Article 10(A) o£ the Collaborators Order, 1972, it has been provided that no fact shall be deemed to be disproved or not proved merely on the ground that there is no post­mortem report, medical report or report of any Chemical examiner or Assistant Chemical Examiner to the Government or of any other expert or that there is delay in giving information to the police or in making a complaint or that the dead body was not found. But in this case the severed head of the deceased was sent for post-mortem examination. Since the head was sent for post-mortem the defence was entitled to point out the defects therein or the points which are favourable to the defence. In such a case the defence cannot be shut out from raising relevant questions relating to the post-mortem examination.

 

State Vs. Abdur Rahman (1975) 27 DLR 78.

 

-Delay in giving information to the police referred to in article 10A(a) must be due to the abnormal law situation in 1971-One and a half year delay from 22.8.71 cannot be condoned without sufficient explanation.

 

Lutfar Mridha Vs. State (1975) 27 DLR 438.

 

Art. 10A(1): Question of delay in informing police about the commission of the offence to be judged from the date of Bangladesh liberation on . 16.12.71. Unusual delay from that date without explanation is a ground for quashing the case.

 

Abdul Hamid Vs. Slate (1975) 27 DLR 352.

 

Art. ll(a) : The Special Tribunal illegally took cognizance of this case under Article. 11 (a) of President's Order No. 8 of 1972 and as such must be quashed.

 

Lutfar Mridha Vs. State (1975) 27 DLR 438.

 

Art. ll(c). Falsely charging any one with the commission of any offence triable under P.O. 8 of 1972 is also an offence triable under that Order in view of inscribed article 11 (c) of P.O. 8/72. '

 

Haji Abdus Samad Vs. Haji Jobed AH (1976) 28 DLR 58.

 

Art.   11   (d)read  with   Part  IV(b):  A collaborator simpliciter can be punished under P.O. 8/72.

The appellant being a "Collaborator" within the meaning of Article 2(b) the offence is complete under Article 11 (i) read with Part IV(b) of the Schedule to P.O. No. 8 of 1972 and he can be punished for the offence of collaborator simpliciter.

 

Obaidullah Majumdar Vs. Stale (1982) 34 DLR 404.

 

Art   ll(d)   read  with   Part  IV(b).  A collaborator simpliciter can be punished under P.O. 8172.

The appellant is a "Collaborator" within the meaning of Article 2(b) then the offence is complete under article ll(d) read with Part IV(b) of the schedule to P.O. No.8 of 1972 and the accused can be punished for the offence of collaborator simpliciter. To prove that the appellant Waged war or abetted in waging war against the Government of the People's Republic of Bangladesh all that the prosecution -has shown is that the appellant urged the people in his meeting at Patiya to rise to the Occasion and defend the country against Indian aggression and hoped that the war would be fought in the enemy territory and that the Army would give exemplary punishment to India so that they would not attack Pakistan in future. The appellant urged the people of Gopalgonj that they should help the Razakars who have been entrusted with the duty to restore law and order in the country. He also praised the role of the Razakars and the members of the Peace Committees in restoring the morale of (he people and normalcy in the country. He observed that Pakistan was achieved through extreme sacrifices of ten crores of Muslims of the sub­continent against the vehement opposition of Hindu India and British Imperialism. The election manifesto of the defunct Awami League was for provincial autonomy and the election was fought on that basis and'nobody ever thought of separation of East Pakistan from the rest of the country.

 

Obaidullah Majumder Vs. State (1982) 34 DLR 404.

 

Art. 14. Order to pay fine may be suspended by the appellate Court.

 

Haji Md. Akil Vs. The State,(1973) 25 DLR 126.

 

--Bail can not be granted nor execution of sentence be suspended by the appellate Court as to one who is convicted under the order.

 

Haji Md. Akil Vs. The State, (1973) 25 DLR 126.

 

-High Court acting under section 427 of the Code may order arrest of an acquitted person and subsequently may also order his release. There can also be no reason to think that having once directed commitment of a respondent to prison in exercise of powers under one part of section 427 of the Code, the High Court Division will have no power subsequently to modify such a direction and pass a fresh order under another part directing that the respondent be released on bail.

 

Superintendent & Remembrancer of L.A Vs, Jobed All (1974) 26 DLR (SC) 1.

 

-No bail can be granted to a person convicted under either P.O. 8 of 1972 or P.O. 50 of 1972 by a trial Court acting u/s. 426(2A), Cr.P. Code. Since Article 7 of P.O. 50 provides for a minimum sentence of three years imprisoivment and Article 11 of P.O. 8 provides for sentences ranging from death or transportation for life to imprisonment for not less than three yean; for the different categories of offences the offences under both the P.Os have been made non-bailable, according to Schedule II of the Code. It is therefore, evident that a person convicted of an offence punishable under P.O. 50 cannot be enlarged' on bail by the trial Court in exercise of power under' sub­section (2A) of section 426 .of the Code. Solicitor,

 

Government of Bangladesh Vs. S. Sanwar Ali (1975) 27 DLR (Appl. Div.) 16.

 

--Denial of bail referred to in "Art. 14 has no reference to a person who has been acquitted of an offence under the Order. On a plain reading of article 14 of tihe Collaborators Order it will appear that it refers to a person "in custody" who is again either convicted of an offence punishable under the Collaborators Order or is accused of such an offence. It is not relatabje to a person who is not in custody. Nor does it make a specific reference to a person who has been acquitted' after having gone through the whole gamut of a trial for an offence punishable under the Collaborators Order, though it does so in respect of a person who has been convicted of such an offence. Superintendent and Remembrancer of Legal Affairs'. Govt. of Bangladesh Vs. Jobed Ali (1974) 26 DLll (SC) 1.

 

-After acquittal an accused in custody gets back his .liberty. Art. 14 has no application to such a person. Superintendent and Remembrancer of Legal Affairs.

 

Govt. of Bangladesh Vs. Jobed Ali (1974) 26 DLR (SC) 1.

 

—Article 14 has no application to a person acquitted but is solely relates to one who has been convicted or one who is facing trial under the Order. Superintendent and Remembrancer of Legal Affairs. Govt. of Bangladesh Vs. Jobed All (1974) 26 DLR (SC) 1.

 

--Acquitted person on appeal against acquittal--Taken into custody by High Court's Ordep-Such custody it different from what is contemplated by Art. 14. It was contended that the acquitted persons having been arrested upon the direction of the High Court, they are persons in custody and therefore in view of Article 14, they cannot be released on bail. Held : Custody in pursuance of such a direction made in an appeal against an order of acquittal cannot but be different from the custody referred to in article 14 which obviously commences before the accused is brought to trial as it is also different from the custody under the second part of clause (2) of article 16 which custody is intended to extend only upto a point of time at which the High Court Division comes to be in seizure of the appeal against the order acquitting the respondent. Obviously, it cannot be otherwise in a case where the respondent in an appeal against an order of acquittal is in custody in obedience to the High Court Division's own direction and not by virtue of the second part of clause (2) of article 16. Superintendent and Remembrancer of Legal Affairs. Govt. of Bangladesh Vs. Jobed All (1974) 26 DLR (SQL)

 

Art.   16:   2nd   part   (of   the   Article). Period of custody after acquittal and its duration. Limit of the period of custody after acquittal extends upto the time when the High Court Division comes to be in seizin of the appeal against acquittal or to the period of 60 days counted from the date of acquittal. Superintendent and Remembrancer of Legal Affairs. Govt. of Bangladesh Vs. Jobed AH (1974) 26 DLR (SC) 1.

 

Art. 16(2) : P.O. 8 of 1972 being silent, High Court's discretionary power to release a person (who has been acquitted of an offence under the collaborators order) but continued to remain in custody under Art. 16(2) of the Order remains unaffected-Equally, High Court can grant bail to such a man when he has been taken into custody under its own order. Superintendent and Remembrancer of Legal Affairs. Govt. of Bangladesh Vs. Jobed AH (1974) 26 DLR (SC) 1.

 

-Article 16(2). Man tried under the Collaborators order acquitted. High Court admits an appeal against acquittal, but if an order to keep the acquitted person in custody without releasing him is not secured by the public prosecutor as provided by Article 16(2) of the Order, the High Court, if moved to issue warrant for his arrest u/s 427, Cr.P.C, will do so, not upon the view that whenever an appeal against acquittal is admitted the acquitted man must remain, as before, in custody, but on the principle, as indicated  section 427, that warrant of arrest should issue in the interest of justice and not otherwise. In this case since the High Court is not satisfied that the man's arrest should be affected, no order to that effect will be passed. Unlike s. 427 of Cr.P.C., article 16(2) does not provide as to how a man released from custody should be arrested. The State Vs. Muhammad Hussain (1973) 25 DLR 207 Article 16(3). A man may be detained not more than 60 days after his acquittal. The State Vs. Muhammad Hussain (1973) 25 DLR 207.

 

The Bangladesh 'Collaborators (Special Tribunals) (Repeal) Ordinance 1975 (LXIII of 1975)

S.2(2)~After repeal of P.O. 8 of 1972 by S.2 of Ordinance 63 of 1975 which came into effect from 31.12.75 all proceedings before any Tribunal abated and could not be proceeded with in any manner.

Charging the accused under sections 147,184 and 436 of the Penal Code read with article 11(B & C) of P.O. 8 of 1972, after Ordinance 63, 1975 came into being could no longer be proceeded with.

 

Mehabullah Vs. Govt. of Bangladesh (1981) 33 DLR 236.

 

--In view of the aforesaid provision in subsection (2) of section 2 of Ordinance No. LXIII of 1975 the proceeding before the Special Judge against the petitioner under P.O. 8 of 1972 abated. This meant that the petitioner stood discharged of any charge under P.O. 8 of 1972.                     

 

S. 2(2): In view of sub-section (2) of section 2 of the Bangladesh Collaborators (Special Tribunals Repeal) Ordinance 1975 Ordinance No. LXII of 1975, all trials or other proceedings thereunder pending immediately before such repeal before any Tribunal, Magistrate or Court, and all investigations or other proceedings by or before any police officer or other authority under that Order shall abate and shall not be proceeded with.

 

Shah Kutub Ali Vs. The State (1976)28 DLR 116.

 

 

 

1818

BANGLADESH NATIONAL LIBERATION STRUGGLE (INDEMNITY) ORDER (16 OF 1973).

Citation: (1984) 36 DLR 196, (1983) 35 DLR (AD) 329, (1984) 36 DLR 169,

Subject: BANGLADESH NATIONAL LIBERATION STRUGGLE

Delivery Date: 2018-08-14

BANGLADESH  NATIONAL

LIBERATION STRUGGLE  (INDEMNITY)

ORDER (16 OF 1973).

 

Art.2--Article 2 of P.O. 16/73 reads as follows:- "No suit, prosecution or other legal proceeding shall lie in any court against any person for or on account of or in respect of any act done during the period from the 1st. day of March, 1971 to the 16th day of December, 1971, in connection with the- struggle for national liberation or for maintenance or restoration^ordempto the 20th day of February, 1972"

 

The article explained : The most important part of this provision is that the offences uot only had to be committed during the period from 1st day of March, 1971 to the 16th day of December 1971 but had also to have been committed in connection with the struggle for national liberation or for maintenance or restoration of order upto 28th February, 1972.

 

Nazir Ahmed Vs. The State (1984) 36 DLR 196.

 

Article 3 of P.O. No. 16 of 1973 reads as follows:- "A public prosecutor shall, upon the Government certifying that a case against any person in the service of the Republic or against any person for or on account of or in respect of any act done by them during the period from the 1st day of March, 1971 and the 28th day of February, 1972, is an act done in connection with national liberation struggle or'for maintenance-or restoration of order, apply to the court and upon submission of such application the Court shall not proceed further with the case, which shall be deemed to be withdrawn and the accused person shall forthwith be discharged."

 

Government certifying that the accused committed the offence in connection with liberation war or for maintenance of order is imperative. In the present case the Government did not certify that the accused petitioners committed the offences in connection with the national liberation struggle or for maintenance or restoration of order. The learned Sessions Judge, therefore, has rightly rejected the prayer for withdrawal of the cases as there is nothing to show that the alleged offence was in connection with the struggle for national liberation or for maintenance or restoration of order. The learned Sessions Judge had no reason to accept such application for withdrawal under P.O. No. 16/73. This view finds support in the case of

 

Syed Matiur Rahman Vs. The State (1983) 35 DLR (AD) 329.

 

-Application fot withdrawal of a case under P.O. 16 of 1973 is not an application u/s. 494 Cr.P.Code . It may be stated that the application under P.O. No. 16 of 1973 by the Public Prosecutor is not an application under section 494 of the Cr.P.C. The mere fact that Government stated that the accused persons are freedom fighters does not ipso facto give any indemnity for committing any offence under section 396 of the Penal Code against innocent citizens.

 

Nazir Ahmed Vs. The State (1984) 36 DLR 169.

Art. 3. Unless it is shown by the Government that its decision to withdraw a case (here on a murder charge) from prosecution relates to an act done in connection with liberation struggle, no ground is made out to enable the court to allow the withdrawal of the prosecution.

 

Article 3 of the Bangladesh National Liberation Struggle (Indemnity) Order, 1973 is as follows:

"A public prosecutor shall, upon the Government certifying that a case against any person in the service of the Republic or against any other person for or on account of or in respect of any act done by him during the period from the 1st day of March 1971, and the 28th day of February, 1972, is an act done in connection with national liberation struggle or for maintenance or restoration of order, apply to the Court and upon submission of such application the Court shall not proceed further with the case, which shall be deemed to be withdrawn, and the accused person shall forthwith be discharged." Held: In the instant case there is nothing to show that Government certified that the case against the appellant relates to an act done in connection with national liberation struggle or for maintenance or restoration of order as stated in the afore­mentioned article. There is nothing to show that alleged offence was in connection with liberation struggle. The learned Sessions Judge on consideration of relevant materials held that the appellant was not freedom fighter and therefore he refused to give his consent to the withdrawal of the case against the appellant, on a serious charge of murder.

 

Syed Matiur Rahman Vs. State, (1983) 35 DLR (AD) 329.

 

—Article 3. Consent of trying judge is not to be given mechanically; the court is to examine the materials on which the Government decides

withdrawal of a case. Court can see if the Government order was malafide or for collateral purpose.

The casesreported in 30 DLR (AD) 228 and 31 DLR (AD) 134 do not lend support to the contention that whenever a decision has been given by the Government to withdraw a case against a particular accused the Court is not competent to examine the materials constituting the basis of the ground. It has consistently been held by the superior Courts in the Sub-continent that consent mentioned in section 494 Cr.P.C. is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Even in the case reported in 31 DLR it has been held that it is open to the Court to see that it was not malafide or made for collateral purpose, when there is specific allegation stating facts in support of the allegation.

 

In the instant case the only reason assigned by the Government for withdrawal of the case against the appellant is that he is a freedom fighter but the learned Sessions Judge on cogent ground had come to the finding that there are no materials to show that the appellant is a freedom fighter. Syed Matiur Rahman @

 

Motiur Rahman Vs. State, (1983) 55 DLR (AD) 329.

 

1819

BANGLADESH PUBLIC SAFETY. ORDINANCE (LXXVIII OF 1958)

Citation: (1975) 27DLR 18.

Subject: BANGLADESH PUBLIC SAFETY

Delivery Date: 2018-10-01

BANGLADESH  PUBLIC   SAFETY.

ORDINANCE  (LXXVIII  OF  1958)

 

Ss,17(l) and 41—Arrest on 'reasonable suspicion' —what reasonable suspicion means—If the arrest is challenged as malafide the prosecution must produce materials to satisfy the court that the arrest is based on reasonable grounds. Tafuruddin Vs. State (1975) 27DLR 18.

1820

Bangladesh Shilpa Rin Sangstha Order, 1972

Citation: 11 MLR (2006) (AD) 329

Case Year: 1972

Subject: Bangladesh Shilpa Rin Sangstha

Delivery Date: 2018-03-11

Bangladesh Shilpa Rin Sangstha Order,

1972 (P.O. No.128 of 1972)

Article 33(5)Notice requiring payment of the money before passing decree is mandatory requirement of law—

District Judge is mandated under article 33(5) of the P.O. No.128 of 1972 to issue notice to the other party to make payment of the money in question before passing the decree which is the mandatory requirement of law. As the District Judge passed the decree without issue of such notice the decree so passed being illegal was set aside by the High Court Division which the apex court found perfectly justified. Bangladesh Shilpa Rin Sangstha BSRS   j Vs. Mrs. Monozvara Begum being dead her heir Mir Md. Iqbal Hossain and others 11 MLR (2006) (AD) 329.

1821

Belief

Citation: (1950) 2 DLR 233 (239)

Subject: Belief

Delivery Date: 2018-08-16

Belief

 

Reason to believe" For a conviction u/s 4(v) of Act IV of 1924 it is not enough to show that there is reason to. suspect. Something more than reason to suspect is necessary and that something is "reason to believe." Belief is a conviction of the mind, by way of inference from evidence received or information derived from others.

 

Fazlul Qader Chowdhury Vs. crown (1950) 2 DLR 233 (239)

1822

Bench and the Bar

Citation: (1983) 35 DLR (AD) 290

Subject: Bench and the Bar

Delivery Date: 2018-08-16

 

Bench and the Bar

Both the Bench and the Bar are two arms of the same machinery and unless they work harmoniously justice cannot be properly administered. An erring judge and erring contemner are both danger to the

pristiiie purity of, the seat of justice.

 

Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.

1823

Bengal Co-operative Societies Act (XXI of 1940)

Citation: (1970) 22 DLR 373

Subject: Bengal Co-operative Societies

Delivery Date: 2018-08-16

Bengal Co-operative Societies Act (XXI of 1940)

 

Ss. 136 and 137(3)-Criminal breach of trust is not an offence referred to in s.136 and therefore, sanction u/s 137(3) not necessary.

 

The State. Vs.AbdurRashid (1970) 22 DLR 373.

1824

BENGAL POLICE REGULATION, 1943.

Citation: (1975) 27 DLR 113, 1977 (SC) 29 DLR 257, (1974) 26 DLR 297.

Subject: BENGAL POLICE

Delivery Date: 2018-08-16

BENGAL POLICE REGULATION, 1943.

 

Rules 272, 275, 276 (b) & 277 : Police enjoys the unfettered right on an investigation to subm it either a charge-sheet or a final report in a particular case, without any interference from the Court. Any direction to a Police Officer to submit charge-sheet after final report has been submitted or to submit a final report after charge-sheet has been submitted, will be illegal.

 

Khorshed Alam Vs. State (1975) 27 DLR 113.

(See further regarding Court's observation about rules 272 and 275 of Bengal Police Regulation under section 169 of Cr.P.C. in the case "Khorshed Alam Vs. State Infra.)

 

Rules 272, 275,  27fr(a) & 277: Charge-sheet   and  final  report,   explained— Police    power    to    resume    investigation after submission of final report.

 

The Criminal Procedure Code does not contain the words "charge-sheet" "final report". Rule 272 of the Police Regulations, 1943, however, contains the words 'charge-sheet' in respect of accused sent up under section 170 of the Code and rule 275 of the aforesaid Regulations refers to "final report" which is to be submitted in a case which does not result in any charge-sheet..Rules 276(a) provides that the Magistrate may accept the final report or direct further enquiry under section 156(b) of the Code or he may take cognizance under section 190(1) (b) of the Code. Rule 276(b) lays down that when a further enquiry is directed by the Magistrate the Police officer after investigation may submit charge-sheet if the charge is proved or submit a final report. Rule 277(a) of the Police Regulations provides that if in any case in which the final report has already been made any information or clue is obtained, the investigation shall be reopened, and clause (c) of the said rule says that if a fresh investigation leads to the conclusion of evidence sufficient to justify a trial a charge-sheet shall be drawn up. Otherwise a supplementary final report shall be submitted. It is thus clear that the Police officer has got powers to resume investigation and submit the charge-sheet if theprima facie case transpires against the accused, although final report was earlier submitted in the case.

 

Abdur Rahman Vs. State 1977 (SC) 29 DLR 257.

 

Rule 280: Rules of the Police Regulations are Administrative instructions.

They are administrative instructions whose observance the police authorities should enforce on their subordinates in order to foster respect for law and as tending to the fair administration of justice.

 

Panchu Vs. The State (1974) 26 DLR 297.

 

 

1825

Bengal Police Regulations, 1943

Citation: 48 DLR 228

Subject: Bengal Police

Delivery Date: 1970-01-01

 

 

Bengal Police Regulations, 1943

 

Regulation No.263—A case diary maintained by the Police cannot be as substantive evidence but it may be used for the purpose of ascertaining the truth or otherwise of the evidence appearing in the case. Abdus Sukur Mia vs State 48 DLR 228.

 

1826

Bengal Rationing Order, 1943, Clause 32.

Citation: (1961) 13 DLR 456

Subject: Bengal Rationing

Delivery Date: 2018-08-16

Bengal Rationing Order, 1943, Clause 32.

 

"Appointed establishment proprietor" -- Person not so appointed has no obligation.

Clause 32 of the E.B. Urban Area Rationing Regulation, 1956 which have been framed under clause 7 of the Bengal Rationing Order 1943 will have no application unless a person is an appointed establishment proprietor. In the absence of anything to show that a person is an "appointed establishment proprietor" it cannot be held that there is any obligation on the part of a permit-holder to act under clause 2 of the aforesaid Regulation of 1956.

 

Abdul Malek Vs. M.U. Chowdhtiry (1961) 13 DLR 456.

 

1827

Bengal Special Powers Ordinance (VI of 1946)

Citation: (1951) 3 DLR 50 (81 & 84), (1949) 1 DLR 29, (1955) 7 DLR 209, (1960)12 DLR 831, (1949) 1 DLR 140.

Subject: Bengal Special Powers

Delivery Date: 2018-08-16

Bengal Special Powers Ordinance (VI of 1946)

 

 

Ss. 10A, 10B, IOC. - Satisfaction of the Provincial Government. The Court cannot go into the question whether satisfaction of the Provincial Government is based on reasonable grounds or not. The Government are not bound to disclose the further circumstances considered by them for further detention. They can be detained further even on the same grounds as before. The Government are bound to disclose such grounds and such particulars or facts as are in their opinion sufficient to enable the detenue to make a representation against the order of detention. The words "in the opinion of such authority" relate both to the "grounds and the particulars."

 

A.K.R. Ahmed Vs. Govt. of E. Bengal (1951) 3 DLR 50 (81 & 84).

-Fresh order under sub-section (1), clause (a), sub-section (4) of section 10A of the Bengal Special Powers Ordinance. 1946 served on the detenue during the pendency of the present proceeding ex fade is good order and though the detention previous to the serving of this order is illegal, and serving of fresh order during the pendency of these proceedings disapproved of, the release of the detenue cannot be directed in the fact of the fresh order served on him.

 

Tamizuddin Ahmed Vs. Crown (1949) 1 DLR 29.

Bengal Village Self-Govt, Act (Vof 1919)

 

S. 23--Under section 23 of the Bengal Village Self-Government Act, a chowkidar has the same power of arrest as that of a police officer.

 

Crown Vs. Rustam All (1955) 7 DLR 209.

 

S. 57(l)(h). Refusal to obey the instruction issued by the S.D.O. by a President who has been appointed by the Divisional Commissioner is not an offence under the section.

 

Ashraf Ali Vs. State (1960)12 DLR 831.

Ss. 71, 93. The High Court has no power to interfere u/s 435 and 439 of the Cr.P.C. with an order passed by the S.D.O u/s 71 or 93 of the Bengal Village Self-Government Act.

 

Rajab Ali Vs. Hassan Ali (1949) 1 DLR 140.

 

1828

Birth date

Citation: (1976) 28 DLR 123

Subject: Birth date

Delivery Date: 2018-08-16

Birth date

 

Expert's opinion on the basis of skiagraph. The skiagraph was taken of different joints of only one side, i.e. the right side of the body whereas skiagraph of joints of both sides of the body ought to have been taken.

 

Profullah Kamar Bhattacharya Vs. Ministry of Home Affairs. (1976) 28 DLR 123.

1829

Blood marks

Citation: (1967) 19 DLR (SC) 113.

Subject: Blood marks

Delivery Date: 2018-08-16

Blood marks

 

Delay in the analysis by the Serologist results in defeating justice.

It is of the utmost, importance that the Serologist's Department should exercise the greatest care to see that not a day's delay unnecessarily occurs in subjecting exhibits of this kind sent to them for analysis.

 

Sardar AH Vs. The State, (1967) 19 DLR (SC) 113.

1830

Boiled Statement

Citation: (1952) 4 DLR 201.

Subject: Boiled Statement

Delivery Date: 2018-08-16

Boiled Statement

 

A "boiled statement" is really a digest or an abstract of the statements of a number of witneses.

 

Sarafat Vs. Crown (1952) 4 DLR 201.

 

1831

Bonafide Claim.

Citation: (1956) 8 DLR 95,

Subject: Bonafide Claim.

Delivery Date: 2018-08-16

Bonafide Claim.

 

Where a bonafide claim exists as to title and an accused person acts in the bonafide belief that he is entitled to a right in the property, then, even though he acts under an erroneous belief, it can not be said that the act committed by the accused has been committed with the necessary mens;rea essential for establishing the guilt.

 

Mamtazuddin Vs. Crown (1956) 8 DLR 95.

 

—"Boni Judicis Est Ampliare Jurisdiction em"-Judge's duty to enlarge his jurisdiction for advancement of substantial justice. If a man has a right he must have means to vindicate and maintain it and a remedy if he is injured in its exercise and enjoyment. It is pertinent in this connection to refer to another well-known legal maxim Boni Judicis Est Ampliare Jurisdictionem which means that it is the duty of a judge to extend and enlarge his jurisdiction. This has been interpreted by the superior Courts of England to mean that it was the duty of the judge applying the law to amplify its remedies and without usurping jurisdiction to apply its rules to the advancement of substantial justice.

 

Kari Palan Mia Vs. State. 118A.

1832

Bribe

Citation: (1983) 35 DLR 257

Subject: Bribe

Delivery Date: 2018-08-16

Bribe

 

When taking of bribe may be circumstantially corroborated.

 

AbdulJabar Vs. State (1983) 35 DLR 257.

--Procured witness for the purpose of watching bribe giving and bribe taking not a proper course for proving prosecution story.

 

Abdul Jabar Vs. State (1983) 35 DLR 257.

 

1833

Capital Sentence

Citation: (1985) 37 DLR 53

Subject: Capital Sentence

Delivery Date: 2018-08-16

Capital Sentence

 

Capital Sentence reduced to transportation for life because the convict was under sentence of death for nearly 11/2 years. As for sentence the condemned prisoner has been facing the death penalty since 24.7.83 and has been languishing in the condemned cell. for nearly 11/2 years. That is enough punishment for the condemned prisoner and she need not be visited with capital punishment after this long suffering. The ends of justice will be met if the sentence of death is reduced to transportation for life.

 

The Slate Vs. M. Malika Khatoon (1985) 37 DLR 53.

1834

Case and counter case.

Citation: (1955) 7 DLR 395 (398), (1981) 33 DLR 154

Subject: Case and counter case.

Delivery Date: 2018-08-16

Case and counter case.

 

In cases which give rise to complaint and counter complaint, the most desirable procedure is that both the cases should be tried by the same judge, though with different assessors and juries. The first should be tried to conclusion and the verdict of the jury or the opinion .of the assessors taken. The judge, however should postpone Judgment in that case till he has heard the second, case to a conclusion and he should then pronounce judgment separately in each case.

 

Duga Mia Vs. Crown (1955) 7 DLR 395 (398).

 

"A case pending before a Criminal Court"- When a cognizable offence is lodged with police and the police sends a report of the same to a Magistrate empowered to take cognizance of such offence on a police report, it becomes a case pending before a Criminal Court.

 

Kh. Ehteshamuddin Ahmed & Iqbal Vs. Bangladesh and others. '(1981) 33 DLR 154

, -Order of transfer signed by the President and Chief M.L. Administrator was a valid order of transfer under Regulation 3(2).

 

Kh. Ehteshamuddin Ahmed & Iqbal Vs. Bangladesh and others. (1981) 33 DLR 154.

1835

Casus Omissus

Citation: (1974) 26 DLR 185

Subject: Casus Omissus

Delivery Date: 2018-08-16

Casus Omissus

 

In certain circumstances it is permissible for the Court to supply a "casuS: omissus" or to alter the language of the statute to give effect to the true and patent intention of the law maker in order to avoid oing a manifest injustice.

 

Nazmul Huda Vs. State (1974) 26 DLR 185.

 

1836

Cattle Trespass Act (1 of 1871)

Citation: (1954) 6 DLR (WPC) 182, (1966) 18 DLR (WP) 31.

Subject: Cattle Trespass Act (1 of 1871)

Delivery Date: 2018-08-16

Cattle Trespass Act (1 of 1871)

(A: Aziz, C.J.)

 

S. 10-Who can seize cattle, illegal seizure can be resisted, The owner of the crop, unless he is also an occupier of the Land, does not come within the ambit of section 10 of the Cattle Trespass Act. Any oiher person who acts on his behalf is not competent to effect seizure under s.10 of the Cattle Trespass Act.

 

Qadir Bakhsh Vs. Crown (1954) 6 DLR (WPC) 182.

 

--Where an owner of cattle uses force to get his cattle, which are wrongfully taken to pound, released, he is not guilty of any offence as he has a right to protect his cattle in the exercise of the right of private defence. Where the seizure of cattle belonging to the accused by the deceased was illegal and amounted to theft the accused was competent to use force to get his cattle released.

 

Qadir Bakhsh Vs. Crown (1954) 6 DLR (WPC) 182,185 Lh. col.

 

-Contrary by M. Khan, J) Where cattle which trespassed into a Land in the joint occupation of the Land Lord and the tenant the Land Lord's servants were perfectly justified in impounding cattle which were destroying the crop. Illegal seizure of cattle and ; taking them to the pound is no offence. It does not •amount to the offence of mischief as it is not causing such a change in the situation of the property as diminishes the utility or value. It does not amount to an offence of theft because the essential element of taking property dishonestly, as contemplated by S.379 P.P.C., is lacking.

 

Qadir Bakhsh Vs. Crown (1954) 6. DLR-'(WPC) 182. (187)

 

S. 10- Right of private defence. -The finding being that either the cattle had caused damage to the crops or were caught before they could cause such damage leads to theological inference that the right to seize the cattle under section 10 of the Cattle Trespass Act arose in favour of the accused. Having seized the cattle they were taking them to the cattle pound. If in doing so they were resisted and attacked, they had right of self defence.

 

Naru Vs. State (1966) 18 DLR (WP) 31.

 

 

1837

Chittagong Hill Tracts

Citation: (1955) 7 DLR 552

Subject: Chittagong Hill Tracts

Delivery Date: 2018-08-26

Chittagong Hill Tracts

 

High Court had no jurisdiction over the area . Though the Chittagong Hill Tracts are within the province of East Bengal, administratively they are isolated from the rest of the province and are beyond the jurisdiction of the High Court. The Dacca High Court has no more jurisdiction over these Tracts than the Calcutta High Court had, and it is clear upon the authorities that, that High Court had no jurisdiction over these Tracts.

 

Md. Ekhlas Vs. Crown (1955) 7 DLR 552.

 

1838

CIRCUMSTANTIAL EVIDENCE -

Citation: (1986) 38 DLR 235

Subject: CIRCUMSTANTIAL EVIDENCE -

Delivery Date: 2018-10-01

CIRCUMSTANTIAL   EVIDENCE     -

In criminal cases based on circumstantial evidence the main principles to be followed are :

The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubts. If theory of the guilt and the theory of innocence are equally probable then also the accused cannot be convicted on such evidence. Hassan All Vs. The State. (1986) 38 DLR 235.

 

—-Abetting murder because the victim had been away 20 hours before his dead body was found it can not be held that the accused had abetted the murder. Hassan All Vs. The Stale. (1986) 38 DLR 235.

1839

CODE OF CRIMINAL PROCEDURE (V OF 1898)

Citation: (1988) 40 DLR 346, (1988) 40 DLR 385, (1986) 38 DLR (AD) 52, (.1986) 38 DLR (AD) 256, (1988) 40 DLR 441, (1958) 10 DLR (WP) 78, (1977) 29 DLR (SC) 256, (1988)40 DLR 295, (1955) 7 DLR (WPC) 17, (1987) 39 DLR 437, (1982) 34 DLR (AD) 352, 2 PLD (BJ) 83,

Subject: CODE OF CRIMINAL PROCEDURE

Delivery Date: 2018-10-02

CODE OF CRIMINAL PROCEDURE (V OF  1898)

Sections 1(2) & 417(1)—Appeal filed u/s 417(2) Cr.P.C. against the judgment and order of acquittal passed by a Special Tribunal is not maintainable—An appeal against a judgment of Special Tribunal will have to be filed u/s 30(1) of the Special Powers Act—The Code of Criminal Procedure shall not affect any special form of procedure prescribed by. any law. State-Vs. Wanur Rahman (1988) 40 DLR 346.

 

Section 4(h)—Definition of expression "Complaint"—whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. Matiur Rahman Vs. State (1988) 40 DLR 385.

 

S. 5(2)The mode of trial dealing "with offences of any other law, subject to any enactment for the time being in force, has been prescribed under s. 5(2) of the Criminal Procedure Code, Delwar All Khan Vs. Sajedul Hague (1986) 38 DLR (AD) 52.

 

S.10—Additional District Magistrate can lawfully perform functions of the District Magistrate in authenticating a declaration. Waliul Bari ChowdhuryVs. District Magistrate, Kushtia (.1986) 38 DLR (AD) 256.

 

Sections 28 and 29(2)—An offence under section .382 of the Penal Code (XLV of 1860) is triable by Court of Sessions as per Column Eight of the Schedule. Karim Dad Vs. Abul l/ossain (1988) 40 DLR 441.

 

S. 30—-First Class Magistrate with powers u/s 30 can try an offence u/s 304 P.P.C. According to sec. 28 a case under section 304 P.P.C. is triable by the court of sessions but section 28 is to be read, as the words "subject to other provisions of the Code" indicate, aiong with sec.30, and the effect of reading them together is that an offence under section 304, P.P.C. becomes triable by a Magistrate of the First Class invested with powers under section 30 Cr.P.Code. Ghulam Ahmed Vs. State (1958) 10 DLR (WP) 78.

 

Sections 60, 61 sections explained &  167Provisions   of Generally the police cannot arrest a person accused of a non-cognizable offence without a warrant from a Magistrate though under certain circumstances the police can arrest for non-cognizable offence also. But when a person is concerned in cognizable offence the police can arrest him without warrant under section 54 of the Code. Section 60 provides that a Police Officer making an arrest without any warrant shall, without unnecessary delay and subject to the provisions of bail, take or send the person-arrested before a Magistrate having jurisdiction in the case or before the Officcr-in-Charge of a Police Station. Under Section  98—112, 114, 115,  117,  118

 

section 61 it is provided that no police officer shall detain in custody person arrested without wairant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, Therefore, unless a police officer considers that he can not complete the investigation within a period of 24 hours it is incumbent upon him to forthwith produce the accused before a Magistrate. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Section   98—Provision  of section  98  is applicable only when the magistrate is satisfied that the place to be searched is used for deposit or sale of stolen property. Qari Habibullah Belali Vs. Capt. AnwarulAzim (1988)40 DLR 295.

 

S. 99D—The plain meaning of section 99D is that the order of the Provincial Government passed under section 99A can be set aside only if it could not have been passed on any of the grounds mentioned in section 99A and not merely on the ground that the book which has been forfeited contains matter which though it falls under section 99A of the Code of Criminal Procedure does not offend against that section of the Penal Code which the Provincial Government was of the view that it offended. The Working Muslim Mission Trust, Lahore Vs. Crown (1955) 7 DLR (WPC) 17.

 

S.103—Procedure laid down in section 103 need not be follpwed by I.O. while seizing alamats. Majibur Rahman Vs.'State (1987) 39 DLR 437.

 

S.107—Proceeding in respect of the disputed land while pending u/s 145 Cr.P.Code in the Magistrate court, the 1st party filed an application u/s 107 of the Code and the Magistrate thereupon directed the 2nd party to execute a bond of 2000/-taka for good behaviour for one year. Thus, twofold order was passed against .the 2nd party, one u/s 145 not to enter the disputed land and another to execute bond u/s 107—Proceedings u/ss 145 and 107 are different and independent of each other—The Magistrate, however, is competent to act u/s 107 if he is satisfied that any party to the proceeding u/s 145 is likely to commit breach .of peace and one such satisfaction may bind down the person who is likely to commit breach of the peace. Sultan Ahmed Vs. Hazi Sultan Ahmed. (1982) 34 DLR (AD) 352.

 

—Execution of a bond u/s 107 is a separate proceeding u/s 145—Procedure, to be followed in case of proceeding u/s 107 whereby provision under sections 112, 108, 109 & 110 shall have to be complied with. Sultan Ahmed Vs. Hazi Sultan Ahmed. (1982) 34.DLR (AD) 352.

 

—Non-compliance with the provision of section 107—Show cause notice as provided in:sub­section (1) of s.107 mandatory which cannot be dispensed with—In case of imminent breach of peace Magistrate, as provided in s. 104, may issue warrant for arrest of a person. Sultan Ahmed Vs. Haji S. Ahmed (1982) 34 DLR (AD) 352.

 

Ss.     112,     114,     115,     117,     118- Mandatory provisions to be followed when action under section 109 Cr.P.Code deemed necessary. If a Magistrate deems it necessary to take action against a person under section 109, Cr.P.Code, he should make an order under the provision of section 112 of the Code and, in so doing it is a mandatory provision of law that the substance of the information received be embodied therein. The failure to do so is an irregularity which is not curable by virtue of section 537, Cr.P.Code. A copy of the order as required by section 115, Cr.P.C,, should then be delivered to him when he is served with a summons under section 114, Cr.P.C. Even if the persons concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of: the procedure to be adopted in a warrant case, must be held under provision of section 117, Cr.P.C. and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he can pass such order as he thinks fit under the provision of section 118, Cr.P.Code.

The act of a person who tried to run away and who gave a false name to the police when questioned did not justify the inference that he was unable to give a satisfactory account of himself. Abdul Mazid Vs. Crown (1953) 5 DLR (WP) 109 (112,1-h col).

 

Ss, 112, 117—In matters arising out of s.107, even in case of emergency, provision of s.112 must be complied with and as provided in s.l 17 Magistrate shall ascertain whether execution of bond is necessary—In case of emergency further provision has been made for execution of interim bond. Sultan Ahmed Vs. Haji Sultan Ahmed (1982) 34DLR(AD)352.

 

Ss. 112 & 118—Simultaneous order to execute a bond and, in, default, to suffer imprisonment illegal—such order, however does not render the whole proceeding illegal. Jale Vs. Crown (1956) 8 DLR 1.

 

S. 113—A Magistrate's failure to comply with the imperative in sections 112 and 113 render the proceedings illegal. The order requiring respondents to execute a bond u/s 109, Cr.P.C,, can not, therefore, he maintained. Crown Vs. Sultan 2 PLD (BJ) 83.

 

—Warrant     Case     Procedure—The application of the procedure of warrant trials to "good behaviour' cases should be as nearly as practicable— clear departure, not proper—cross examination of P.W.s. should generally wait till next hearing—Direction for immediate cross examination, without recording reasons, causes prejudice. Jagar MamudVs. State (1956) 8 DLR 401.

 

—Magistrate's failure to comply with the imperatives in sections 112 and 113 render the proceedings illegal. The order requiring respondents to execute a bond under section 109 Cr.P.C., cannot, therefore, be maintained. Crown Vs. Sultan 2 PLD(BJ) 83.

 

S.114—See u/s 112 Abdul Majid Vs. Crown. (1953) 5 DLR(WP) 109 supra. Ss. 115, 117, 118—Requirement of the section to be complied with. If a Magistrate takes action against a person under section 109 Cr.P.Code, he should make an order under the provisions of section 112 of the Code, and in so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an irregularity which is not curable by virtue of section 537, Cr.P.Code.

 

A copy of the order as required by section 115, Cr.P.C. should then be delivered to him (i.e., the person concerned) when he is served with a summons under section 114,Cr.P.C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case must be held under provision of section 117 Cr.P.C., and finally if, as a result of such inquiry, the magistrate is satisfied that security should be furnished he can pass such order as he minks fit under the provision of section 118, Cr.P.Code Abdul Mazid Vs. Crown 5 DLR (WP) 109.

 

S. 115—See u/s 112 Abdul Majid Vs. Crown. (1953) 5 DLR(WP) 109 supra,

 

Ss. 117—See u/s 112 Abdul Majid Vs. Crown. (1953) 5 DLR(WP) 109 supra.

 

Ss.117, 118—In matters arising out of s.107, even in case of emergency, provision of s.112 must be complied with and as provided in s.l 17 Magistrate shall ascertain whether execution of bond is necessary—In case of emergency further provision has been made for execution of interim bond. Sultan Ahmed Vs. Haji Sultan Ahmed (1982) 34 DLR (AD) 352.

 

S. 118—See u/s 112 Abdul Majid Vs. Crown. (1953) 5 DLR(WP) 109 supra.

 

Ss. 118 & 112—Simultaneous order to execute a bond and, in default, to suffer imprisonment illegal—such order, however does not render the whole proceeding illegal. Jale Vs. Crown (1956) 8 DLR 1.

S.123— Simultaneous orders to execute a bond or suffer imprisonment in default, illegal. Amjad Ali Vs. Crown (1955) 7 DLR 98 (102).

 

S. 144—Status quo is not contemplated in a proceeding under section 144 Cr.P.C. Nazibul Islam

6  ors. Vs. Dr. Amanullah & th? State (1988) 40 . DLR 94.

 

—A Magistrate has no jurisdiction under section 144 Cr.P.C. to issue notice upon the parties to file written statement before him showing cause by a certain date. Nazibul Islam & ors. Vs. Dr. Amanullah & the State (1988) 40 DLR 94.

 

Sections 144 and 145(4)—The instant case is not one of conversion from s. 144 to 145 Cr.P.C. By the impugned order the application u/s.144 Cr.P.C. was disposed of and a proceeding was drawn u/s 145 Cr.P.C. being satisfied as to the apprehension of serious breach of peace. Nazibul Islam & ors. Vs. Dr. Amanullah & the State (1988) 40 DLR 94.

 

Section 145—Under s.145 Cr.P.C. the Court deals with the limited scope of finding possession. Haji Goiam Hossain Vs. Abdur Rahman Munshi (1988) 40 DLR (AD) 196.

 

—Conversion of proceeding to one under section 145. Conversion of a proceeding u/s 144 into one under section 145 during a period the. former was in force is lawful. Gulam Ahad Vs. SamserAli (1960) 12 DLR 801; PLD (Dacca) 499, (I960) 10 PLR 816.

 

Life of an order u/s 144 and starting of proceedings under sec.145. Life of an order u/s 144 having terminated on the 60th day of the order, both the rival parties claimed possession of the disputed land. The Magistrate in his order recorded that there was apprehension of breach of the peace and on that he can direct drawing up of proceedings u/s 145. Alauddin Vs. Ansar Alt (1954) 6 DLR 567.

 

—An order under section 144 when to be converted to one under section 145 Cr.P.Code. In a dispute over certain land the Magistrate drew up proceedings under section 144 Cr.P.Code on a police report on 27.9.68 and before expiry of two months passed the following order on 26.11.68 : "Both parties are present. The order is made absolute." Held : The Magistrate should have converted the earlier proceedings drawn up under section 144 Cr.P.Code to one under section 145 Cr.P.Code, if he was satisfied that there was further likelihood of breach of peace over the land in dispute. Joynal Abedin Dhali Vs. Mabullah Matbar (1970) 22 DLR 87.

 

—The order of the Magistrate for drawing up proceeding u/s 145, Cr.P.C. on his being satisfied from the submission of the parties to him that a dispute likely to cause breach of the peace exists, after the expiry of the order u/s 144, drawn up on police report, is valid in law. Alauddin Vs. Ansar Ali (195.4) 6 DLR 567.

 

—Life of the proceedings u/s 144 having terminated after the expiry of two months, no fresh proceedings u/s. 145 could thereafter be started, as proceedings u/s 144 being irrevocably dead, they could not either be revived or converted into any thing else. Rebati Mohan Dey Vs. Ansar Ali (1953) 5 DLR 162.

—Proceedings u/s, 144 were converted into those u/s 145 on 60th day counting from the day on which notice under section 144 was issued valid in law. Enat Ali Akanda Vs. Meser Ali Sheikh (1974) 26 DLR 210.

 

—The Sessions Judge should abide by the decision, on the question of fact of the trial Magistrate. In making a reference under section 438 Criminal Procedure Code a court of session should not make an independent assessment on a question of fact. Mrs. Maswood Vs. Md. Meah. (1974) 26 DLR 170.

Sections 145 and 146 Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is likelihood of breach of peace over immovable property. Section 146 cannot be separated from section 145. It can only be read in the context of s.146. The scheme shows once a proceeding has begun with preliminary order jit must be followed up by an enquiry and end with final order. There is no question of stopping in the middle unless the Magistrate is satisfied that the breach of peace does not exist whereupon the Magistrate cancels his preliminary order. In other words, once a preliminary order is passed it-must run its full course. A revisional court can stop course only in exceptional cases. What are those circumstances will depend on the facts of each case. Shahjahan Vs^ Sessions Judge (1986) 38 DLR (AD) 246.

 

Sections 145 and 146(1)—The purpose of the proceeding u/s. 145 Cr.P.C. is to find the possession of the property. Haji GolamHossain Vs. Abdur Rahman Munshi (1988) 40 DLR (AD) 196.

 

—Ss. 145 and 537—The Barisal Bench came, to the conclusion in a cryptic manner, no doubt, that the first party failed to establish a prima facie case of their locus standi to initiate a proceeding under section 145 Cr.P.C. In view of this conclusion there is no hesitation in saying that though the Sessions Judge prematurely intervened, passed the order correctly and legally and any such irregularity is curable by the provisions in section 537 Cr.P.C. Shahjahan Vs. Session Judge (1986) 38 DLR (AD) 246.

 

Sections 145(4) and 144—The instant case is not one of conversion from s.144 to 145 Cr.P.C. By the impugned order the application u/s.144 GpiP.C. was disposed of and a proceeding was drawfi u/s 145 Cr.P.C. being satisfied as to the apprehension of serious breach of peace. Nazibul Islam & ors. Vs. Dr. Amanullah & the State (1988) 40 DLR 94.

 

8.145(4)—Magistrate is not justified in taking action under section 145(4) Cr.P.C. when the fact of pendency of civil litigation between the parties over the disputed property is broughfto his notice and especially when security proceedings over the same are pending in his court—Circumstances under which Magistrate is not empowered to lake action under section 145 Cr.P.C. discussed. Ghulam Habib Vs. The Stale (1976) 28 DLR (WP) 11.

 

Sec.   145(5)

Section 145 indicates that there should be a continuing danger of a breach of peace and use of the word "exists" in the present tense in sub-section (5) connotes that the dispute must continue to exist even at the time when the objection is raised. Shahjahan Vs. Session Judge (1986) 38 DLR (AD) 246.

 

—For dropping proceeding under sub-section (5) of section 145 of the Code, Magistrate not bound to hold enquiry under sub-section (4) of the same section—Magistrate, when satisfied that there is no likelihood of any breach of peace, not bound to give parties opportunity to establish the contrary. Mansur Ali Rari Vs. Chinta Haran Das (1970) 22 DLR 367.

 

S.146 : Provision of the sections examined. Section 146 appears to be a follow up of section 145 of the Code as is evident from the expression "then in such possession" occurring in sub-section (1) of section 146. Reference may be made to sub­sections (1)(4),(5) and (6) of section 145 of the Code to ascertain the true import of the said expression. The first step that a Magistrate is required to take when he is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundary-thcreof is to draw up a proceeding under sub-section (1) of section 145 of the Code. The object of this preliminary and formal order is to give notice to the parties to put their claims in writing as regards the fact of actual possession of the subject of dispute. After this has been done the Magistrate is required to hold an enquiry under sub-section (4) thereof and decide, upon taking evidence, as to which of the parlies was at the date of the order before mentioned in such possession of the said subject, namely, which of the parties was in actual possession of the subject of .dispute on the date of the preliminary order passed under sub-section (1). The first proviso of sub-section (4) makes an exception to this rule in favour of the party, which has been forcibly and wrongfully dispossessed within two months of the date of the order. Such parly may be treated by the Magistrate as having been in possession at the date of the preliminary order. The second proviso of sub-section (4) enables the Magistrate to attach the subject of dispute pending the completion of the enquiry under that sub-section. Sub-section (5) of section 145 makes it obligatory upon the Magistrate to cancel the preliminary order and stay all further proceedings arising ihcrcfrom as soon as he is satisfied Ihat such dispute as aforesaid no longer exisls or had existed.

 

Sub-section (6) of section 145 provides that when the Magistrate has found upon enquiry the possession in favour of one of the parlies he shall declare such party to be entitled to possession thereof until evicted therefrom in due course of law and he may also restore the party, which has been forcibly and wrongfully dispossessed, to the possession of the properly. Adam All Vs. State (1975) 27 DLR (Appl. Divn.) 37.

 

Appointment, of receiver—When can be made. Attachment of property can be made at any. stage of the proceeding under section 145(1) Cr.P.C. provided ihe Magistrate considers the case one of emergency but appointment of receiver can only be. made'after an enquiry is held under section 145(4) and when the conditions laid down in section 146 Cr.P,C. exist, that is, If the Magistrate decides that none of the parties was then in' possession or unable to decide which of the parties therto was then in_, such possession.' Asghar Vs. The State (1970) 22' DLR (WP) 305.

 

i S. 146—If possession is found with one party sub-section (4) of section 145 will apply. If, no decision can be arrived at as to possession, section 146 will apply. Jamiia Mannan Vs. Aminur Rashul alias Farid Mia (1984) 36 DLR 31.

 

—Sections 145 and 146 Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is likelihood of breach of peace over immovable property. Section 146 cannot be separated from section 145. It can only be read in the context of s.146. The scheme shows once .a proceeding has begun with preliminary order it must be followed up by an enquiry and end with final order. There is no question of slopping in the middle unless the Magistrate is satisfied that the breach of peace does not exist whereupon the Magistrate cancels his preliminary order. In other words, once a preliminary order is passed it must run its full course. A revisionai court can stop course only in exceptional cases. What are those circumstances.will depend on the facts of each case. Shahjahan Vs. Sessions Judge (1986) 38 DLR (AD) 246.

 

146(1) : Apprehension of breach of the peace must be present for passing a preliminary order u/s.!45(!) and must continue till passing an order u/s.l46(I). Adam All Vs. State (1975) 27 DLR

(AD) 37.

 

—Question as to the attachment of disputed property either u/s 145(4) or u/s. 146(1) is one for the Magistrate to decide. The question whether the subject matter of dispute should be attached, either under the second proviso of sub-section (4) of'section 145 or sub­section (1) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the' facts and circumstances of the case.

 

In the instant case, the learned Magistrate attached the disputed iand on 26.1.1.67 under sub­section (1) of section 146 of the Code in pursuance of direction, given by the High Court. That direction calling upon the learned Magistrate to attach the land once again, if it had already been released, was, however,.not a proper direction. Adam Alt Vs. State (.1975) 27 DLR (AD-) 38.

 

Sections 146(1) and 145—The purpose of the proceeding u/s. 145 Cr.P.C. is to find the possession of the property. Ilaji Golam Hossain Vs. Abdur Rahman Munshi (1988) 40DLR,(AD) 196.

S. 154—Accused named in promptly lodged F.l.R. supported by medical evidence. Majibur Rahman Vs^ State (1987) 39 DM 437.

 

First-Information   Report

In the early, morning "somebody" was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police "by somebody" is the First Information Report within the meaning of section 154 of the Cr.P.C. and all subsequent information fall within the purview of section 161 of the Cr. P.C. Muslimuddin Vs. Slate (1986). 38 DLR (AD) 311.

 

—Delay in lodging of F.I.R.—The delay is to be understood in the light of the plausibility of the explanation aid must depend for consideration on all the facts and circumstances of a given case—here it is the fear of the accused assassins. State Vs. Fatal (1987) 39 DLR (AD) 166.

 

—Which one of several information about same occurrence to be regarded as the F.l.R. depends upon the facts and circumstances of each case. Touhid Alam Vs. The Slate. (1986) 38 DLR 289.

 

Ss.  154 and  19'5(l)(c) An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s. 195, Cr. P.C. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s 211, Penal Code, in which case the bar created by s. 195 Cr. P.C. will not be attracted— When Magistrate takes cognizance of an offence u/s. 211 Penal Code, on the basis of false allegation that docs not attract the provisions imposed by s. 195(l)(c) Cr, P.C. Abdul Quader Vs. Serjuddowla (1936) 38 DLR 221.

 

Ss. 156, 157, 159—Provisions of the sections explained.

Section 155 of the Code provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate of First or Second Class having power to try such case or commit* the same for-trial. Sub-sec. (1) of section 156 enpowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157 of the Code lays down the procedure to be adopted in the matter of investigation, while section 169 provides that if upon an investigation it appears to the officer making the investigation that there is not sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

S. 156 (3) : Under s. 156(3) Magistrate may without taking cognizance of an offence send the case for investigation of police. Under sub-section (3) of section 156 a Magistrate may order an investigation but this investigation is intended for a case where the Magistrate instead of himself taking cognizance of an: offence on a complaint, forwards it to the police for investigation. In such a case the complaint is treated'as the first information report by the. police. The Magistrate takes cognizance of an offence under sec. 190(1 )(b) of the Code on a police report. State Vs. AbulKashem (1975) 27 DLR 342.

 

S.  157,   159,   156,   155

Section 155 of the Code provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate of First or Second Class having power to try such case or commit the same for trial. Sub-sec. (1) of section 156 enpowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157 of the Code lays down the procedure to be adopted in the matter of investigation, while section 159 provides that if upon an investigation it appears to the officer making the investigation that there is not sufficient evidence or reasonable grounds of suspicion to Justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Section 161— The examination of prosecution witnesses u/s. 161 Cr.P.C. after a considerable lapse of time casts serious doubt on the prosecution story. Moin Ullah Vs. State (1988) 40 DLR 443.

 

Section 162—Statements made to the Police in course of investigation of an offence started on the basis of F.I.R. are admissible in evidence. Ext I not being statements made in course of investigation to the Police comes within the above provision of law. Nurul Islam Vs. The State (1988) 40 DLR 122.

 

—First Information Report recorded at place of occurrence after preliminary investigation-Inadmissible in evidence. AH Sher Vs. State (1966) 18 DLR (WP) 112.

 

- Failure to supply approver's statement-Accused prejudiced—Approver's statement recorded under section 161 was not supplied to the defence lawyer when he asked for it in the trial court. Accused was convicted on approver's and circumstantial evidence. In the Court of Appeal, the Court offered the statement of the approver recorded under section 161 but the accused's lawyer refused; the Court, however, assured that the contradictions would be treated as unexplained.

 

This course is not sufficient to amend the prejudice caused to the accused—The right course was either to send the case for retrial or call the approver to have him cross-examined on his statement recorded under section 161. Faiz Ahmed Vs. State (I960) 12 DLR (SC) 42; 1960 PLD (SC) 8.

 

—Recording of witnesses' statement in a boiled down form is irregular, but unless it causes prejudice to the accused, the trial stands. Md. Israfil Vs. Slate (1957) 9 DLR 92.

 

—Statements of witnesses recorded under sec. 161 cannot be withheld from defence on the plea that they were recorded in a boiled down form. Abdul GhaniMusalli Vs. Crown (1953) 5 DLR 313 and also see. Shahbaz Vs. crown (1957) 9 DLR (WP) 1

 

—Record of joint statement of several persons—withholding the same prejudices the defence.

 

—Statement made to a police-officer under sec. 161 is inadmissible in evidence and cannot be brought on record. 53 CWN (DR: 1) 66.

 

—To allow the defence to cross-examine witnesses with reference to their boileddown statement recorded by a police officer is not only an illegality but also causes miscarriage of justice. A.F.M. A. Jalil Vs. A. Sabur (1953) 5 DLR 169.

 

Ss. 162 and 164—For guidance in recording a confession or statement under s. 164 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any confession. State Vs. Lalu Mia. (1987) 39 DLR (AD) 117.

 

S. 164—Condemned prisoner Abdur Rouf was arrested on 12-2-77 and he made confession on 28-2-77 before a Magistrate who made a disclosure of as to how the murders were engineered and how it took place. It is apparent that the accused confessed his guilt of his own accord. Abdur Rouf Vs. Stale. (1980) 38 DLR 188.

 

—For guidance in recording a confession or statement under s. 164 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any contention. State Vs. Lain Mia. (1987) 39 DLR (AD) 117.

 

Pre-requisites  of judicial confession

The required formalities have duly been observed. Namher All Vs. State. (1987) 39 DLR (AD) 194.

 

Ss. 164 and 364 —Confession—Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State Vs. Abdur Rashid (1988) 40 DLR (AD) 106.

 

—All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. The State Vs. Mizanul Islam (1988) 40 DLR 58.

 

—No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Khan Vs. State (1988) 40 DLR 186.

 

S. 167, 60 and 61Provisions of sections explained.

Generally the police cannot arrest a person accused of a non-cognizable offence without a warrant from a Magistrate though under certain circumstances the police can arrest for non-cognizable offence also. But when a person is concerned in a cognizable offence the police can arrest him without warrant under section 54 of the Code. Section 60 provides that a Police Officer making an arrest without any warrant shall, without unnecessary delay and subject to the provisions of bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before the Officer-in-Charge of a Police Station. Under section 61 it is provided that no police officer shall detain in custody person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate, under section 167, exceed 24 hours exclusive of the time. necessary for the journey from the place of arrest to the Magistrate's Court. Therefore, unless a .police officer considers that he can not complete the investigation within a period of 24 hours it is incumbent upon him to forthwith produce the accused before a Magistrate. Ahdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Ss. 167, 173—Production of accused before Magistrate u/s.61 and the Courts order therein docs not mean taking cognizance. Police submitting final report before completing investigation, an order of discharge therein is not a judicial order. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Sections    167,   173,   190   and   561A

Proceeding before a Court starts when the competent Court takes cogni/ancc of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the F.I.R. has not submitted any chargc,-shccl. Rule for quashing the proceedings is liable to be discharged. Makbul llossain Vs. State (198S) 40 DLR 326.

 

8.167(5)—Magistrate dismissed the earlier G.R. Case started on the basis of F.I.R. dated 2.3.82 u/s 203 Cr.P.Codc on the ground that investigation was not concluded even uplo 4.3.84—Dismissal u/s.203 being illegal a fresh F.I.R. can validly be lodged. Alhaj Mamtaj Meah Vs. The Slate (1986) 38 DLR 152.

 

8.167(5) read with section 35, clause (c) of Ordinance 24/1982.

 

The time-limit for conclusion of investigation within 180 days from the date of receipt of the F.I.R. is merely directory—Investigation not affected if carried on beyond this lime limit. Alhaj Mamtaj Meah Vs. State (1986) 38 DLR 152.

 

8.167(6)—Sessions Judge can be moved for further police investigation. Md. Abul Kaiam Azad Vs. State (1986) 38 DLR 159.

 

S.167

—Sub-seriions (6),(7) and (7A) of section 167 —Provisions of these sub-sections explained in respect of their relation to each other. Md. Abul Kalam Azad Vs. State (1986) 38 DLR 159.

 

S.167(6) & (7)—Difficulty arising from the provision as drafted in sub-sees. (6) and (7) of sec. 167 to be resolved so as to avoid any unwarranted conclusion. Md. Abul Kalam Azad Vs. State (1986) 38 DLR 159.

Section 167 sub-sections (7), (7A)—If the Magistrate releases the accused under sub-section (7), the Dist. Magistrate can order prosecution under sub-sec. (7A) within 6 months from the date of release. Md. Abul Kalam Azad Vs. State (1986) 38 DLR 159.

 

—Without express order by the Magistrate releasing the accused, the accused in not automatically released with the expiry of schedule time. Md. Abul Kalam Azad Vs. Stale (1986) 38 DLR 159.

 

8.167(7)—When the Magistrate is informed by the prosecution that the Sessions Judge is being moved for extension of time lor further invesligalion, the accused's release order should be withheld for reasonable time lo get an order of Ihc Sessions Judge under sub-section (6) of s. 167. Md. Abul Kalam Azad Vs. State (1986) 38 DLR 159.

 

8.167(7)—Power to revive—Order passed by the learned A.D.C. u/s. 167(1) Cr.P.C. in exercise of powers not vested in him is illegal. Muslehuddin Vs. State (1987) 39 DLR 421.

 

—Extension of time for invesligalion allowed by the A.D.M. cannot be treated as revival of the' case. Muslehuddin Vs. State (1987) 39 DLR 421.

 

-Earlier order being without jurisdiction, the subscqucni order reviving the proceeding on the basis of the earlier illegal order is without jurisdiction and void. Proceeding liable lo be quashed. Muslehuddin Vs. Stale (1987) 39 DLR 421.

 

 Section -167(7A) &   339C-

On  a  plain reading of the .provision of section 339C, the District Magistrate's authority And jurisdiction arises lo revive the case under section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the dale when such order of slopping proceeding and release of the accused should have been passed or deemed to have been passed. ilamizuddin Vs. The State (1988) 40 DLR 287.

 

S.I70—Duty of Police Officer to proceed or not against an accused person. Unfettered liberty of Investigating Police Officers in investigation cannot be the subject-matter of investigation by the Court during trial. Md. Sharfroz Khan Vs. Crown 5 DLR (FQ280.

 

Ss.170 and 173—The words charge-sheet and final report arc not in s.173 or elsewhere in Code—Under rule 275 of ih'c Police Regulation Bengal 'charge-sheet' is to be submitted when an accused is sent up under section 170 of the Code and a final report to be submitted when police finds no case against an accused. Khorshed Alain Vs. State (1975) 27DLR 111.

—Charge-sheet may be submitted in a particular case even when a final report has been submitted, if found necessary, on fresh evidence. Khorshed Alam Vs. State (1975) 27DLR 111.

 

Ss.172 and 178Functions regarding investigation under these sections. A report could always be called from the Investigating Agency because Part V of the Chapter XIV of the Cr.P.C. deals with the investigation and section 168 contemplates report of the police officer who investigated the case and reports the result to the Officcr-In-Charge of the Police Station and section 170 of the Cr.P.C. and more specifically section 172 provide for calling police diary of a case under inquiry or trial in such court and then the report under section 173 contemplates a forwarding of such report to the court. Mizanur Rahman Vs. Stale (1977)29 DLR 167.

 

S.I 73--Police submitted final report as no evidence was forthcoming—When later on evidence was available police applied for reinvcstigation, which the Magistrate granted—This is in accordance with law. Abdur Rahman Vs. State (1977) 29 DLR (SC)256.

 

— S.I 73-cxplaincd Provisions   of   the   sections

.Section 170 provides that if upon an investigation it appears to the officer-in-chargc of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cogni/ancc of the offence upon a police report and lo try the accused or to commit him for trial or if the offence is bailable shall lake security from him for his appearance before the Magistrate, Section 173 refers to the report of the police officer submitted on completion of investigation. Clause (a) of sub-section (!) of section 173 requires the officcr-in-chargc of the police station to forward to a competent Magistrate, a report in the prescribed form setting forth the necessary particulars. Sub-section (2) of section 173 lays down that where a superior police officer has been appointed under section 158 the report shall, in any case in which the Government .so direct be submitted through that officer who may, pending the orders of the. Magistrate, direct the officcr-in-chargc of the police station to make further investigation. Sub-section (3) lays down that if it appears from the report that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

 

It is to be noted lhat section 173 refers lo invcstigaiion and such rcporl may relate to a case covered by section 169 and also to acasc covered by section 170 of the Code, namely ihe case where ihe police officer thinks that the evidence is insufficient to send up the accused and the case where the police officer thinks lhat the evidence is sufficient to justify the forwarding of the accused lo the Magistrate. Khorshed Alam Vs. State (1975) 27 DLR 111.

 

Ss,173,167Production of accused before Magistrate u/s.61 and the Courts Order therein does not mean taking cognizance. Police submitting final report before completing investigation, an order of discharge therein is not a judicial order. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Sections 173, 167, 190 and 561 A— Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the F.I.R. has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Makbul Hossain Vs. State (1988) 40 DLR 326.

 

Ss. 173 and 170—The words charge-sheet and final report are not in s,173 or elsewhere in Code—Under rule 275 of the Police Regulation Bengal 'charge-sheet' is to be submitted when an accused is sent up under section 170 of the Code and a final report to be submitted when police finds no case against an accused. Khorshed Alam Vs. State (1975)27DLR 111.

 

—-Charge-sheet may be submitted in a particular case even when a final report has been submitted, if found necessary, on fresh evidence. Khorshed Alam Vs. Stale (1975) 27 DLR 111.

 

Ss.173 and 176—Provisions of sees. 154, 173 and 176 explained. The procedure for investigation by a police officer has been laid down in chapter XIV of the Code of Criminal Procedure from sections 154 to 176.

 

On completion of the investigation the police officer shall submit to the Magistrate a report in a prescribed 'form'. This report shall be either sending up the accused for trial or recommending that the case against him be cancelled. In the former case the report is called final report. These two terms do not appear in section 173 or anywhere in chapter XIV. These terms have been provided in the Department Rules of the Police. Sub-section (2) of section 173 provides that a superior'police officer may direct further investigation; but such direction can be given only when the superior police officer has been appointed under section 158.

 

Section 158, of the Code relates to a report as to investigation of a case under section 157, that is, where commission of a cognizable offence has been suspected by the officer-in-charge of a police station. State Vs. Abul Kashem. (1975) 27 DLR 342.

 

Ss. 173 and 190—"Cognizance" what the word connotes, explained. It seems clear that the word 'cognizance' (in sections 173 and 190 of the Code) refers to a stage of mental condition at which a Magistrate or a Judge decides upon taking necessary steps to initiate a judicial proceeding against a person accused of an offence for placing him on trial with a view to determine the truth or otherwise of the accusation. Applying that test to the facts of the present case it appears that stage was reached on 12.8.68 when the learned Senior Special Judge decided to initiate proceedings by obtaining sanction for prosecution of the petitioner. Khorshed Alam- Vs. State (1975) 27DLR 111.

 

S.176—Provincial Government has no power to order an enquiry into the cause of death of a person after an enquiry had already been held by a Magistrate. Proceedings of the Magistrate holding the inquiry is only open to revision by the High Court. Khuda Baksh Vs. Province of the West Pakistan 9 DLR (WP) 54.

 

Section 176 and 197, Read with Act XL of 1958, S. 6(5)—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches u/s.176 CrJP.C.—Difference between "prosecuted" without prior sanction u/s. 6(5) and "taking cognizance" without prior approval. Matiur Rahman Vs. State (1988) 40 DLR 385.

 

Ss.  178 and  172Functions regarding investigation under these sections. A report could always be called from the Investigating Agency because Part V of the Chapter XIV of the Cr.P.C. deals with the investigation and section 168 contemplates report of the police officer who investigated the case and reports the result to the Officer-in-charge of the Police Station and section 170 of the Cr.P.C. and more specifically section 172 provide for calling police diary of a case under inquiry or trial in such court and then the report under section 173 contemplates a forwarding of such report to the court. Mizanur Rahman Vs. State (1977) 29 DLR 167.

 

S. 190

Sections   190,   167,   173   and   561A

Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the F.I.R. has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Makbul Hossain Vs. State (1988) 40 DLR 326.

 

Ss.190 and 173—"Cognizance" what the word connotes, explained.  It seems clear that the word 'cognizance' (in sections 173 and 190 of the Code) refers to a stage of mental condition at which a Magistrate or a Judge decides upon taking necessary steps to initiate a judicial proceeding against a person accused of an offence for placing him on trial with a view to determine the truth or otherwise of the accusation. Applying that test to the facts of the present case it appears that stage was reached on 12.8.68 when the learned Senior Special Judge decided to initiate proceedings by obtaining sanction for prosecution of the petitioner. Khorshed Alam Vs. State (1975) 27DLR 111.

 

Sections    190,    195    and    196-198

Provision in s.195 like the provisions in sections 196-198 Cr.P.C. are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence u/s.190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hal Khan & ors. Vs. Slate (1988) 40 DLR (AD) 226.

 

Ss. 190, 200 and 204—Narazi petition by a complainant—Magistrate's power -to initiate proceeding on his own accord. It is open to an informant to submit a narazi petition against a final report submitted by the police before the Magistrate who may treat such petition as a petition of complaint, take cognizance under section 190(l)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(l)(b) of the Code on the information contained in the police report, if in his opinion the facts stated therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points under the powers conferred upon him under section 356(3) of the Code. Khorshed Alam Vs. Stale. (1975) 27 DLR 111.

 

S.190(a)(b)—In a complaint case the Magistrate is to decide after the statement of the complainant and his witnesses whether to proceed with the trial of the case. In cases triable by Sessions Court the Magistrate to decide whether cognizance to be taken. A Salatn Master Vs. Slate (1983) 35 DLR 140.

 

S.19()(b)—Police in this case following the requirements of section 173 of the Code submitted a report to the Magistrate in which the police showed that so far as the two persons complained against were concerned no evidence was available against them and thus put their names in Col.2 of the challan. The Magistrate on reading said report disagreed and summoned the 2 accuseds under clause (b) of section 190 of the Code. Question arose whether ignoring the police report submitted under section 173, the Magistrate would take cognizance of an offence under section 190(b) of the Code.

 

Held : Sub-section (3) of section 173 makes it clear that the Magistrate may or may not agree with a police report. There is therefore, nothing wrong if the Magistrate proceeds under s. 190 of the Code and starts proceedings'against, persons whose names have been placed in column 2 of the challan. Falak SL and another Vs. State (1967) 19 DLR (SC) 426.

 

S.190(b)—Before the Court decides to take cognizance of an offence and takes steps to bring the alleged offenders to trial, it must be satisfied that the allegations contained in the report, if proved, would constitute an offence and establish that the accused were the offenders. Abdul AH Vs. Stale (1978) 30 DLR (SC) 58.

 

S.190 (l)(c)—Direction to the Upazila Magistrate to take cognizance. Sessions Judge left nothing for the learned Magistrate to do except taking cognizance. Quamurazzaman alias Lai Vs. The State (1988) 40 DLR 509.

 

—Sessions Judge acted illegally in directing the Upazila Magistrate to take cognizance of the offence. Quamurazzaman alias Lai Vs. The Slate (1988) 40 DLR 509.

 

S.193—Section 193 provides that except as otherwise expressly provided no Court of,Session shall take cognizance of any offence as a court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246.

 

S.195.

Sections    190,    195    and    196-198

Provision in s. 195 like the provisions in sections 196-198 Cr.P.C. are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence u/s.190 of (lie said Code. A private parly may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan & ors. Vs. Slate (1988) 40 DLR (AD) 226.

 

Sections 195 & 476—Section 476 is not independent of s. 195 of the Code—Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan Vs. Stale (1988) 40 DLR (AD) 226.

 

Sections 195(sf)(.b)(c) and 476—There is specified procedure and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of s.195 Cr.P.C. Abdul Hai Khan Vs. Stale (1988) 40 DLR (AD)-226.

 

S.195(c)—No cognizance can be taken against one of the appellants who appears to have forged the document except on complaint by the Court. Abdul Hai Khan Vs. Slate (1988) 40 DLR (AD) 226.

 

Ss. 195(c). and 476—Section. 195(c) says that no court shall lake cognizance of an offence under sections, 463, 471,475 or 476 of the Penal Code—(i) unless such offence is alleged lo have been committed by a party in any proceeding in that court, and (ii) in respect of a document produced in such proceeding by such party.—except on a complaint by such a courl made in writing and signed by ihe said court—Section 476 provides that when a courl finds that an offence mentioned in section 195(c) has been committed by a person the court may after preliminary inquiry record a finding to that effect and make a complaint signed by the court and forward the accused to a Magistrate of compelcni jurisdiction, Saleha Khatun Vs. Stale (1987) 39 DLR 109.

 

S.195(l)(c)—Clause(c) of section 195 applies only to cases where an offence is committed by a party, as such, to a proceeding in any court in respect of a document which has been produced or given in evidence in such proceeding. —In the facts and circumstances of the case, the provision of section 195(c) of the Code of Criminal Procedure is not applicable. -Saleha Khatun Vs. Stale (1987) 39 DLR 109.

 

S.195(l)(c)—The view taken in AIR 1943 Nagpur 327 "all the High Courts are how agreed that once a forged document is brought, then private complaints subsequent to this are barred by s.195 even in respect of anterior forgeries anterior, thai is, lo ihe litigation—has been consistenlly followed in 20 DLR Dhaka 66 & olhcr cases. Abdul Hai Khan & ors. Vs. The State & anr. (1988) 40 DLR (AD) 226.

 

Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hai Khan Vs. Slate (1988) 40 DLR (AD) 226.

Section 195(1)(C)—Jurisdiction of a Criminal Court when barred. Which Court is empowered to take cognizance of offences in the section 195(1)(C). Abdul Hai Khan Vs. State (1988) 40DLR(AD)226.

 

S.19S(l)(c) and (4)—Ambit of sub-section (4)ofs.l95Cr.P.C.

—It is therefore, clear that the offences referred lo in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-section (4) of s.195 including their abctments or attempts independent of ihc dates of their commissions. Abdul Hai Khan Vs. Slate (1988) 40 DLR (AD) 226.

 

Ss.l95(l)(c) and 154—An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s.195, Cr.P.Code. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s 211, Penal Code, in which case the bar created by s.195 Cr.P.Code will not be attracted—When Magistrate takes cognizance of an offence u/s. 211 Penal Code, on the basis of false allegation that does not attract the-provisions imposed by S.195(l)(c) Cr.P.C. Abdul Quader Vs. Serjuddowla (1986) 38 DLR 321.

 

Section 195(l)(c) and 476—Restricted application of clause(c) to be discarded.

—I am, therefore, inclined to think that reading Gl. (c) with sec.476 of the Code, there docs not seem to be any compelling reason to restrict the application of the said clause limiting the control of Ihc court only to few offences (Committed pcndcnte lile) as would be the practical result of such interpretation.

 

—The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hai Khan Vs. State (1988) 40 DLR (AD) 226.

 

S, 195(l)(c)—Provisions of the section explained.

Section 195 of the Code of Criminal Procedure puts restriction on the general power conferred upon all courts of the Magistrate by section 190 of the Code of Criminal Procedure to take cognizance of offences. Idrish All Vs. The Stale (1986) 38 DLR 270.

 

It provides that when an offence specified in section 195(l)(c) of the Code appears to have been committed by. a party to any proceeding in any Court in respect of a document produced or given in evidence in such a proceeding, no Court is competent to take cognizance of such an offence except on the complaint in writing of the Court concerned or some other Court to which it is subordinate. Idrish All Vs. The Stale (1986) 38 DLR 270.

 

A Revenue Officer dealing with mutation case does not constitute a Court within the meaning of section 195(l)(c) of the Criminal Procedure Code. Idrish Ali Vs. The Slate (1986) 38 DLR 270.

 

S. 195(I)(c)Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take, cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clausc(c) of section 195 (1) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with, since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr.Law Amendment Act. Md. Muslim Khan Vs. The State (1986) 38 DLR (AD) 60.

 

—Where complaint lias not been made by the concerned court u/s 195(1 )(c) Cr.P. Code in a proceeding held under site Cr.Law Amendment Act cognizance of ihe offence can not be taken. Md. Muslim Khan Vs. The Stale (1986) 38 DLR (AD) 60. '

—Forgery in respect of a document explained.

Each and every offence of forgery committed in connection with a proceeding of a Court is not covered by clause (c) of s.!95(l) Cr.P.C. Md. Muslim Khan Vs. The State (1986) 38 DLR (AD) 60.

 

—In the present case forged documents were not produced or given in evidence in the certificate proceeding which had been disposed of earlier. Md. Muslim Khan Vs. The State (1986) 38 DLR (AD)-60.

 

S.195(l)(c)—When forged documents are filed in Court, on a complaint thereon the Supreme Court may act. Such a complaint may by filed under s.!95(l)(c) Cr.P.C. even now if the respondent dares to move the Court for that purpose. These documents issued and certified to be true copies by an authorised officer of the Government are admissible in evidence. Abdus Sattar Vs. Mahiuddin (1986) 38 DLR 97.

 

8.196.

Sections 190, 195 and 196-198— Provision in s.195 like the provisions in sections 196-198 Cr.P.C. arc exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence u/s. 190 of ihe said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul llai Khan& ors. Vs. Stale (1988) 40 DLR (AD) 226.

 

Ss.1'97, 176 read with Act XL of 1958, S. 6(5)—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches u/s 176 Cr.P.C.—Difference between "prosecuted" without prior sanction u/s 6(5) and "taking cognizance" without prior approval. Matiur Rahman Vs. State (1988) 40 DLR 385.

 

S'.197(l)(b)—It Is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1) of the Code of-Criminal Procedure nor even every act done by him while he is actually engaged in the performance of his official duties but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. Sudhir Das Gupta Vs. Bhupal Chandra Chowdhury (1986) 38 DLR 343.

 

8.198(1)—If police submits final report in a particular case—Court (or Tribunal) can in spite of the final report try the accused or commit him for trial. Abdur Rahman Vs. Slate (1977) 29 DLR (SC) 256.

 

S.200—Failure to examine a complainant-Serious irregularity. It must, however, be seen whether the failure has prejudicially affected the complainant. A failure to follow the provisions of section 200 in respect of examination of the complainant does not entail invalidation of the proceedings taken. Elahi Box Vs. State (1987) 39 DLR 137.

 

Ss. 200, 190 and 204—Narazi petition by a complainant—Magistrate's power to initiate proceeding aniiis own accord. It is open to an informant to submit a narazi petition against a final report submitted by the police before the Magistrate who may treat such petition as a petition of complaint, take cognizance under section 190(l)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(l)(b) of the Code on the information contained in the police report, if in his opinion the facts stated therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points under the powers conferred upon him under section 156(3) of the Code. Khorshed Alam Vs. Slate. (1975) 27DLR 111.

 

Ss.200,202,204 and 20'5(c)—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Session Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate, Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246. .

Ss. 200(1),202(2A) & 202(2B)~-Cognizance of an offence on complaint has not been restricted to those offences which are.triable by the magistrate only. Under section 200 Cr.P.C. the Magistrate can lake cognizance of any offence. He can issue processes against the accused under section 204(1) CrJP.C. in respect of any offence of which he takes cognizance, whether the offence is triable exclusively by the Court of Sessions or not. The second proviso to section 202(1) Cr.P.C. inserted by the Ordinance No.XXIV of 1982 provides by way of clarification, that in complaint cases which appear to be triable by the Court of Session, if the Magistrate decides to postpone the issue of process, he may take or cause to be made an enquiry or investigation to ascertain the truth or falsity of the complaint. The proviso to section 202(2A) provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath and section 202 (2B) provides that the magistrate shall be competent to accept the final report submitted by the police and discharge the accused in cases triable by the Magistrate or exclusively by the Court of Sessions. Abdus Salam Master Vs. The State (1983) 35 DLR 140.

 

Ss. 202, 200, 204 and 205(c)— Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246.

 

( 8.202(1)—A complaint cannot be sent for judicial enquiry or investigation under section 202(1) Cr.P.C. unless the complainant has been examined on oath. Nur Mohammad Mondal Vs. Md. Abdul Hossain & others (1976) 28 DLR 389.

 

—Procedure which a Magistrate may follow when taking cognizance of an offence u/s.200 as well as u/s.202(l). Under section 200 Cr.P.C. any Magistrate taking cognizance of an offence may examine the complainant and the witnesses present upon oath and after reducing the substance of such examination may issue processes for the attendance of the accused in accordance with provisions, of section 204(1) Cr.P.C. if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding. But any Magistrate on receipt of a complaint may in accordance with the provisions of sections 202(1) Cr.P.C. postpone the issue of processes for compelling the attendance of the person complained against and either enquire into the case himself or direct an enquiry or investigation by any Magistrate subordinate to him or by a police officer or by any other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Nazimuddin Ahmed Vs. State (1982) 34 DLR 424.

 

Ss. 202(2A), 200(1), 202(2B) — Cognizance of an offence on complaint has not been restricted to those offences which are triable by the Magistrate only. Under section 200 Cr.P.C. the Magistrate can take cognizance of any offence. He can issue processes against the accused under section 204(1) Cr.P.C. in respect of any offence of which he lakes cognizance, whether the pffence is triable exclusively by the Court of Sessions or not. The second proviso to section 202(1) Cr.P.C. inserted by the Ordinance No.XXIV of 1982 provides by way of clarification, that in complaint cases which appear to be triable by the Court of Session, if the Magistrate decides to postpone the issue of process, he may take or cause to be made an enquiry or investigation to ascertain the truth or falsity of the complaint. The proviso to section 202(2A) provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath and section 202 (2B) provides that the magistrate shall be competent to accept the final report submitted by the police and discharge the accused in cases triable by the Magistrate or exclusively by the Court of Sessions. Abdus Salam Master Vs. the State (1983) 35 DLR 140.

 

S.203: Ordinarily a Magistrate has to accept complainant's statement on oath but when he considers the statement baseless, or that no offence is made out, he has to dismiss ii—Magistrate should state reasons for postponing process but omission does not vitiate proceedings. Anwar Mahmood Vs. Rashiduzzaman (1959) 11 DLR (WP) 77 : (1958) PLD (Lah.) 186.

—Magistrate taking cognizance of the offence— Complaint cannot be dismissed unless the result of the investigation is before him. Where the inquiring Magistrate without inquiring into the fact says that the complaint should, be dismissed because of the delaying tactics of the complainant, it cannot be said that "the result of the investigation or inquiry is before him." Fateh Sher Vs. Khan Yasin Khan (1959) 11 DLR (WP) 134 : (1959) PLD (Lah.) 660.

 

—Complaint (or report) made not enough to disclose a prima facie case—

Necessity of evidence. Proof of sanction— In a case where the initial complaint or report is of such a nature that it is doubtful whether prima facie case of the offences alleged is made out, Magistrate would be fully within his rights in calling for evidence before deciding that the complaint or report should be rejected. Equally, if he feels the necessity or otherwise of sanction, as a prerequisite to the competency of a case the Magistrate would be justified in calling for proof of such facts as would enable him to be satisfied that he could not proceed without sanction. But cases are conceivable in which the facts alleged in a complaint or report do not constitute a prima facie case of the offences alleged, and in such a case, if a Magistrate were to call for evidence, the duty of the Court of correction would be to reverse that order and to dismiss the complaint or report. The case is similar^where upon a correct view of the law, the complaint before a,magistrate cannot be proceeded with in the absence of sanction by reason of the fact alleged. S.M.H. Rizvi Vs. Abdus Salam (1960) 12'DLR (SC) 103.

 

S.203—Magistrate inquiring u/s 202 not to weigh evidence—The trying Magistrate acting u/s 203 has to exercise his independent judgment on receipt of report u/s 202. Ansaruddin Molla Vs. Hamid(1966)lSDLR295.

 

Sections 203 and 439A—Whether the Sessions Judge has got power under S.439A. Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 -of the Code. Bangladesh Vs. Yakub Sardar (1988) 40 DLR (AD) 246.

 

S.204—Magistrate's wide power to issue process. Magistrate has been given the power for using discretion whether to proceed by way of issuing processes or not by the Court. If the Magistrate having followed the procedure laid down in the Code can exercise his judicial discretion as to whether he ought to issue processes or not, the High Court will respect his decision and will be slow to disturb his order that he has passed. The complainant filed a petition to summon the discharged accused, on the ground that the evidence made out a prima facie case against them. The trying Magistrate rejected the petition observing:

This is a police case and court cannot include the non-sent up accused persons in framing charges at this stage. Prayer rejected. Court will take cognizance against accused persons who are sent up for trial only by the I.O."

 

Held : The trying Magistrate in the instant case wholly erred in law when he declined to consider the case of the present appellants on the ground that this being a police case and since the police did not submit charge-sheet, he is not authorised by law to take cognizance against these appellants. Abdul Jabbar Khan Vs. State (1980) 32 DLR (AD) 247.

 

Ss.2.04,     200,     202     and     205(c)

Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh Vs. Yokub Sardar & ors. (1988) 40 DLR (AD) 246.

 

Ss.204, 247—If the complainant remains absent on the date fixed for hearing or on subsequent dates—though the accused appeared as directed—the court must acquit the accused. Aziran Khatun Vs. Abu Tayeb (1987J39DLR 272.

S.204—The Additional District Magistrate could not have transferred the case to the Sub-Divisional Officer merely to decide whether steps should be taken under section 203 or 204 of the Code. Such a course would be illegal. M.N. Mustafa Vs.ZaharatAra (1961) 13DLR 9 :10PLR (Dae.) 1157: (1961) PLD (Dae.) 533.

 

S.204(l)—Trying Magistrate has the power to discharge the accused person under section 204(1)—Magistrate's order discharging an accused on police report is a judicial order.  The wording of section 204 of the Code seems to suggest that there may be a case in which the Magistrate has taken cognizance, but in which in his opinion, there is no sufficient ground for proceeding; and it is quite true that the Code does not provide what is to happen in that case. The Magistrate must in such a case discharge the accused. When a Magistrate discharges an accused he is making an order similar in character to the order which he can make under section 203 of the Code, where he acts, on a report of the police or an investigation undertaken at his request. Although the Code does not expressly so provide, there is no doubt that a Magistrate can act upon the report of a Police Officer, as to the result of a Police inquiry undertaken under the Code in accordance with the powers conferred upon the Police, and can discharge an accused person without further irtquiry. But in such a case the order of the Magistrate is a judicial order which would be open to review by the High Court. Abu Vs. Haji Abdul Gani (1962) 14 DLR 511.

 

Ss.204(3), 435 and 436—Provisions under which Courts are competent to direct the The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropolitan Magistrate and the High Court Division, got power under section 435 Crl. P.C. to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has- been dismissed under, section 203 or sub-section (3) of section 204 Cr.P.C. Bangladesh Vs. Yakub Sardar (1988) 40 DLR (AD) 246.

 

S.205(c)

Ss.200,202,204 and 205(c)—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Session Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate, Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246.

 

S.205CC—The naraji petition filed by the informant ought to have been disposed of by the Sub-Divisional Magistrate in accordance with the provisions provided under Chapter XVI of the Code of Criminal Procedure, and if he were of the opinion that there were sufficient grounds for proceeding against those discharged accused persons for committing the alleged offence under section 326 P.C. he was to take steps either u/s 205C or u/s 205CC, Criminal Procedure Code as the circumstances of the case would warrant. Abdus Salik alias Sarkumullah Vs. The State (1983) 35 DLR 425.

 

S.210—Where there are questions of fact or of law. upon which the prosecution and the defence are at issue, the decision upon such issues can only be reached by the Sessions Court as for example, as to the place of the occurrence, as to the possession in respect of that place, as to who were the trespassers and aggressors and as to the exercise of the right of the private defence. Mozaharul Huq Vs. Ishaque Sardar (1962) 14 DLR (SQ25.

 

S.222—Form of.charge where a minor is taken away from the guardianship—Where a female under 16 years of age is kidnapped by.the accused with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will, the charge must state from whose guardianship that female had been kidnapped. Ear All Vs. State (1959) 11 DLR 242 : (1959) PLD (Dae)750.

 

8,222(2)—Criminal breach of trust in respect of several items—charge is to limit the period of committing such offence to one year—If this provision of law not observed, the judgment must be sci aside, such illegality not curable u/s. 537, Criminal Procedure Code. Mansur All Vs. State (1987) 39 DLR 184.

 

Ss,222(2j, 23'5Charge 'under s.222(2) is to be treated as a charge for one offence for the purpose of section 234. The words "one offence within the meaning of section 234." in section 222(2) are significant. The charge framed under sub-section (2) of section 222 has to be treated as a charge of one offence for the purpose of section 234 only. It may be said that it has no bearing as regards section 235 Cr.P.C. So far as section 235 Cr.P.C. is concerned all items of misappropriation have to be taken as all distinct offences.

Dishonest misappropriation and criminal misconduct fall within two different laws. Abdul Molaleh Khan Vs. The State (1973) 25 DLR 14.

 

Sections 234 and 236—Applicability of Sections 234 & 236—Manner of—Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two incidents are independent and wholly unconnected with each other, no joint trial is permitted. Lai Mia Vs. State (1988) 40 DLR 377.

 

S.23S.

Ss.235, 222(2)—Charge under s.222(2) is to be treated as a charge for one offence for the purpose of section 234. The words "one offence within the meaning of section 234." in section 222(2) are significant. The charge framed under sub-section (2) of section 222 has to be treated as a charge of one offence for the purpose of section 234 only. It may be said that it' has no beating as regards section 235 Cr.P.C. So far as section 235 Cr.P.C. is concerned all items of misappropriation, have to be taken as all distinct offences.

v 'Dishonest misappropriation and criminal misconduct fall within two different laws. Abdul Motaleb Khan Vs. The State (1973) 25 DLR 14.

 

Ss.236, 234—Applicability of Sections 234 & 236—Manner of—Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two incidents are independent and wholly unconnected with each other, no joint trial is permitted. Lai Mia Vs. State (1988) 40 DLR 377.

 

Sections 236,237,238,417 and 423—A finding of acquittal can be converted into one of ] conviction only in an appeal u/s 417 which being in accord with s.423 Cr.P.C. is the correct view taken in Bawa Singh's case. Mofizuddin Vs. The State (1988) 40 DLR (AD) 286.

 

Ss. 237 and 238—Appellate Court can alter the conviction for oilier offence for which no charge was made. Jahangir Hossain Vs. The State (1988) 40 DLR (AD) 545.

 

S.241—Compliance with the different provisions of the section providing discharge of accused by the Trial Magistrate, stressed Magistrate acted illegally in dealing with the case in (he manner he did. Haji Azizur Rahman Vs. Syeedul Haque Chowdhury (1986) 38 DLR 4.

 

S.241A—Expression "record his reasons for so doing" lays obligation on the Magistrate as to how he shall proceed to deal with the case before passing an order of discharge. Haji Azizur Rahman Vs. Syeedul Hague Chowdhury (1986) 38 DLR 4.

 

—Section 241A (and section 265C) envisage recording a finding of a prima facie case warranting framing of a charge—Its scope does not envisage anything beyond this. Haji Azizur Rahman Vs. Syeedul Haque Chowdhury (1986) 38 DLR 4.

 

S.241A—Forgery—Fabrication of bank record taking recourse to forgery and using the same as genuine by deceitful means for taking pecuniary advantage for themselves and for others—-Prima facie case made out against the accused—Order of discharge of the accused. (Shafiqul Islam) shows total non-application of judicial raiad of the Special Judge to the materials on record. Provision of S.241A is to be strictly followed. An order of discharge can be made only when no case is made out against the accused. State Vs. Shafiqul Islam (1988) 40 DLR 310.

 

Sections 243 and 537—Violation of the mandatory requirements of section 243 in recording the individual statements of the accused either in their language or in words as nearly as expressed by them is not curable by section 537. Conviction and sentence are not sustainable in law accordingly. All Newaj Bhuiyan Vs. Slate (1988) 40 DLR 398.

 

S.247—Three conditions in the matter of acquittal u/s.247 Cr.P.C.—Acquittal order illegal in case of non-existence of these conditions :— In order to make an order under section 247 Cr.P.C. three conditions are to be satisfied. There should be service of summons, secondly, the date fixed should be the date for appearance and thirdly, on that date the complainant is to be found absent. Unless these conditions are present the Magistrate is not authorised to pass an order of acquittal. Golam Nasir Vs. Abdul Aziz (1987) 39 DLR 103.

 

S.247(read with s.204)—If the complainant remains absent on the date fixed for hearing or on subsequent dates—though the accused appeared as directed—the court must acquit the accused. Aziran Khatun Vs. Abu Tayeb (1987) 39 DLR 272.

 

S.250—The Assistant Sessions Judge acted beyond jurisdiction in making the impugned order u/s.250 Cr.P.C. as the offence u/s.382 Penal Code is triable by Court of Sessions, and not by a Magistrate. Karim Dad Vs. Abul Hossain (1988) 40 DLR 441.

 

S.250E(3)—The succeeding Magistrate may in his discretion act on the evidence recorded by his predecessor or partly by his predecessor and partly by him and he is to decide which witness should be recalled for cross. Defence required to submit points on which it wants to cross-examine any witness whom it wants to recall (which should not be shown to the,. prosecution), Surath Kumar Biswas Vs. Cecil Sudin Baroi(1982)34DLR305.

 

—S.250(3) read with proviso to s.350(l). Discretion lies with the trying magistrate to recall for further cross examination any prosecution witness—Defence to satisfy the court as to necessity . of such re-cross-examination. Surath Kumar Biswas Vs. Cecil Sudin. Baroi (1982) 34 DLR 305.

 

S. 253—Discharging an accused without complying with the procedure laid down in sections 252 & 253 Cr.P.C.—illegal. The S.D.O. in this present case was satisfied on receipt of the local report that the accused person could be charged under section 379 for cutting and keeping the paddy belonging to the complainant and summoned the accused under section 379 P.P.C. and thereafter transferred the case to another Magistrate, 1st Class for disposal.

 

On the day fixed for examining the prosecution witnesses the trying Magistrate rejected an adjournment petition filed by the complainant and discharged the accused without examining the prosecution witnesses.

 

Held : Discharging the accused without examining the prosecution witnesses as contemplated under sections 252 and 253 Cr.P.C. was illegal. Similar is the case where an accused is discharged for non-prosecution without examining the prosecution witnesses as required under sections 252 and 253 Cr.P.C. Jabed Ali Vs. Joynal Mridha, (1968) 20 DLR 662.

 

S. 257—Right of cross-examination. Right to recall witnesses—New law does not interfere with the accused's right of cross-examination, but affects only a procedural change—Accused not entitled as of right to recall P.Ws.—Application of section 540 Cr.P.Code in suitable cases. Right of an accused person to defend himself includes the right of cross-examination of the prosecution witnesses.

 

The right to recall witnesses already examined before the charge, really matures into a vested right only when a charge is framed. Where such a contingency arose after the amendment of sections 256 and 257 of the Criminal Procedure Code, the view that the fundamental right of cross-examination has not been interfered with by the new law and only a procedural change has been effected which cuts down a further facility for cross examination not affecting the substance of right has much to commend itself. The new law should not be held even in a pending case and the accused should not be held entitled, as of right, to recall witnesses already examined before the charge. The right of the accused is really one of being tried according to the procedural law current for the time being.

 

The consideration, however, would be pertinent whether the accused in a particular case is likely to suffer some prejudice because he might have, in view of the old law, reserved-some important questions in the cross-examination of the witnesses for a stage after the charge, if need be. Such a possibility cannot be entirely excluded, though this may not involve invasion of the fundamental and substantial right of cross-examination. To meet such a possible contingency of prejudice, the provisions of s.540 of the Cr.P.C. could very properly be invoked in suitable case. Stale Vs. Md. Jamil (1968) 20DLR(SC)315.

 

S.264—In case of conviction a brief statement of the reasons are to be given; where there is no conviction but an acquittal, the section does not require that reason should be given. Md. Matiur Rahman Vs. Asgar All (1984) 36 DLR (AD) 91.

 

S.265—All processes to compel attendance of PWs when failed, order of acquittal u/s.265 is correct. KamarAli Vs. Abdul Manaf(1987) 39 DLR 319.

 

—Summary trial—Whether appealable or not— No formal charge need be framed. Sections 264 and 265 when read with sections 262 and 263 makes it clear that in no summary trial whether it be appealable or non-appealable, need a formal charge in writing be framed. Section 264(2) specially when read with opening words of section 265, makes it clear that the judgment and judgment alone, embodying as it does the substance of the evidence and the particulars mentioned in section 263, is the self-contained record of the case, Muslim Mondal and others Vs. State (1962) 14 DLR 595; (AIR) 1926 Lah. 301 followed. 27 CWN 923, 27 CrLJ. 1925 dissented.

 

265H—An order of acquittal can validly by passed so far as the provisions of Chapter XXIII of the CrP.Code are concerned (which deals with trials before Courts of Sessions) u/s 265H, which provides that an acquittal shall be passed, if the Court after hearing the prosecutor and defence, considers that there is no evidence to find the accused guilty. Amena Hoquc Vs. Rajab All (1986) 38 DLR 303.

 

S.276—Case trial summarily under article 2(4)(e) of P.O. 50/72 and the accused convicted and sentenced to 3 years R.I. and fine—Substance of the accusation not read out to him nor he was examined u/s. 342 of Cr.P.Code—These are mandatory provisions even in- summary trial and non-observance of which vitiates the trial. Summary procedure does not dispense with the compliance of mandatory provisions as to the trial of a criminal case. Samuj All Vs. State (1976) 28 DLR 18.

 

S.290-^Accused declaring not to lead evidence cannot claim to do so under section 290. The provision for selection in section 289, is of a definitive nature and once an accused person has made a choice and declared that he will not lead evidence, he cannot rely on anything contained in section 290 for claiming a separate and supplementary right to adduce evidence. Lalan Vs. Crown (1955) 7 DLR (FC) 139.

S.311—Previous conviction—To elicit it by the Judge questioning the accused—grave error. It is a grave error in a Sessions trial for a Judge to elicit by his own questions evidence of the previous conviction of an accused on trial before him, which contravenes the provisions of sees. 310 and 311 of the Cr.P.Code. Crown Vs. Darog Ali (1956) 8 DLR 190.

 

S.327Sessions Judge alone to exercise powers under section 326 : Asst. Sessions Judge under section 327. The duty of issuing a precept imposed on the Sessions Judge by Sec. 326 cannot legally be performed by an Assistant Sessions Judge. But the Assistant Sessions Judge has the powers conferred on the Court of Sessions under sec. 327, to summon one set of jurors for a particular trial that has to be held and this is authorised by sec. 327. Ala-am Molla Vs. Crown (1951) 3 DLR 240.

 

S.339C—"Working days" for disposal of Criminal cases—stopping proceedings for release of the accused—"Working days" of the Court— "Working days" shall be understood to mean the "Working days" during which the learned Judge will hold the charge of the trial Court—A Division Bench of the High Court Division rightly excluded Ihe period of 53 days from the statutory period for the trial as the Additional District Judge held the charge of the District and Sessions Judge for 53 days which were not treated as "working days" for the trial Court. The application for quashing the proceeding rightly rejected. Abul Kashem Vs. The State (1988) 40 DLR (AD) 97.

 

Sections 339C & 167(7A) —On a plain reading of the provision of section 339C, the District Magistrate's authority and jurisdiction arises to revive the case under section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date on which such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed. Hamizuddin Vs. The State (1988) 40 DLR 287.

 

S.339C—Stoppage of proceedings and release of accused persons does not mean final disposal of a case. Such a case is still considered to be a pending case. Md. Joha alias Shamsuzzoha Vs. The State (1986) 38 DLR 205.

 

S.339C read with s.35(c) of Code of Criminal Procedure (2nd) Amendment Ordinance (24 of 1982). A case cognizance of which was taken on 10.3.81, is a case which falls within the provisions of section 35(c) of Ordinance 24 of 1982 to which section 339C has no application. Ruhul Amin Vs. State (1986) 38 DLR 166.

 

S.339C read with sec. 173

A charge-sheet which is not in accordance with law, that is no charge-sheet in the eye of law, when submitted on a particular date can be taken as starting point for conclusion of trial u/s. 3;39C—-Acceptance of such a charge-sheet by court makes no difference, Md. Rafiqullah Vs, State (1986) 38 DLR 124.

 

The police can submit any number of supplementary charge-sheets. Md. Rafiqullah Vs. State (1986) 38 DLR 124.

 

S.339C(1)(3)—If trial by Magistrate continues beyond 60 days referred to in sub-sec.(1) but is concluded within 30 days' time referred to in sub-sec.(3) though the Court did not record in writing reason for requiring 30 days more as provided in sub-section (3), the trial held is valid . Yakub Kan Vs. Kaloo Khandaker (1986) 38 DLR 8.

 

S.339C(i)(e}—'Working days' of a Court of law means working days of the Court and not of the Magistrate concerned. Nayan Vs. State (1986) 38 DLR 415.

Trying Magistrate engaging himself in some extra function during the course of the trial—those days can not be discounted from the 'working days' u/s. 339C. Nayan Vs. State (1986) 38 DLR 415.

 

S.339C(3)—Provision for recording reasons to avail 30 days more time for trial u/s.339C(3) is merely directory. Md. Rafiqullah Vs. State (1986) 38 DLR 124.

 

When a Magistrate on receipt of a case for trial could not even frame charges against the accused within 60 days' time provided for conclusion of the trial of the case u/s.339C(l) from the date of such receipt of it is to be assumed that the Magistrate extended the trial for further 30 days by implication. Md. Rafiqullah Vs. State (1986) 38 DLR 124.

 

S.339C(4)—Release of the accused (charged with murder) on conclusion of the specified time, without being tried—Is a matter of serious concern demanding suitable provisions to remedy the grave situation. Mohammad All Vs. Sukur Ali (1986) 38 DLR1.

 

S.339C read with Ordinance No.37 of 1983 (corning into force on 8.8.1983 extending the lime-limit upto-30.6.1985 in his case and later on finally upto 36,9.1985)—Charge-sheet was submitted on 16.6.83 before S.D.M. who in due course forwarded the record to the Sessions Judge for trial. The case comes within the ambit of the time limit of the Ordinance No.37 of 1983 which was intended to save such trials. Construction put to the Ordinance by the H.C. Division is not correct to conclude that this, case is "not pending" on the date of commencement of the Ordinance. The State Vs. Madhu Mirdha (1988) 40 DLR (AD) 99.

 

"] . S.339C, sub-section (6)—Criminal trial—"Working days" to be counted in determining the time for disposal for criminal cases—"Working days" mean the days on which a Judge works as such—So, the (jays when the learned Sessions Judge was on leave and outside the stations should not be regarded as "Working days" of the learned Sessions Judge—The coijrt is of the opinion that these days should be excluded while computing the time required for disposal of the session case—This being the legal position 150 days did not expire in the present case and application for stopping of the proceeding of the sessions case and for release of the accused petitioners has rightly been rejected. Akbar All Vs. State (1988) 40 DLR 29.

 

Ss, 339C(1)(4).(6), 435 and 439— Section 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused person—Impugned order by the Id. Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed— 339C(6) provides for counting of working days in determining the time for disposal of cases. Sultan Ahmed Vs. Golam Mostafa & ors. (1988) 40 DLR 85.

 

Ss.339C(2){3)(4)(6)—Time for completion of trial of Sessions case within the statutory period of 270 days including the extended time—Case pending before the Sessions'Judge, Narail since 12.12.1985—After examination of one witness the petitioner filed a petition u/s 339C(4) of the Code for release of the accused petitioner on the ground that the specified period of 240 days and extended time of 30 days totalling 270 working days for trial of the accused petitioner had already elapsed— Dictionary meaning of the word is not a safe guide for interpreting an expression in a statute—

 

Calculation sheet showed that. more than 361 working days of the court had passed from 12.12,85 to 30.3.87 and the number of 363 days excluded only holidays and Fridays but not the days during which the Sessions Judge could not sit in court when the Court was open—"¥/orking days" shall be interpreted as "working days" of the Judge and not of the Court—Non-,working days of a particular Judge for reasons beyond his control should be excluded from the "working days" when counted. Ekram.nl HoqVs. State (1988) 40 DLR 139.

S.339C(1)(2)(3)(4)(6)— Time for disposal of Criminal Cases—"Working days" mean "Working days of a particular Judge or a Magistrate" and not the "working days of a particular Court." Arninul Huq Vs. The State (1988) 40 DLR,144.

 

S.339C (4) —Effect   of   Martial   Law

Administrator, (a Supra-Constftoiional authority), taking the case out of the jurisdiction of.the Sessions Court—The case ceases to be pending in the.Sessions Court and when the case is sent back again to the Sessions Court the limitation of 150 days as provided under section 339C(4) of Cr.P.C. shall be counted afresh. Sayed Ahmed Vs. State (1987) 39 DLR 407.

 

S.342—Complaint about failure to duly examine the accused u/s.342—Failure must prejudice him. Shahadat Hossain Vs. State (1987) 39 DLR 72.

 

S.342—Accused facing trial must be told of the specific allegation brought against him. Neither in the petition of complaint nor in the examination of the accused under sections 242 and 342 of the Cr.P.Code the accused was told that there was allegation against him for unauthorised construction of any building. Held : Conviction of the accused in such circumstances for unauthorised construction was bad in law. Nizamuddin Mia Vs. The State (1974) 26 DLR 350.

 

—Provision of secs.242 and 342 must be complied with even in summary trials envisaged, under chapter XXII of the Code. Even when holding the summary trial the Code cannot ignore some of the mandatory requirements of the law. Abul Hashem Vs. The Slate (1975) 27 DLR242.

 

S.342—Case tried summarily under article 2(4)(e) of P.O. 50/72 and the accused convicted and" sentenced to 3 years R.I. and fine. Substance of the accusation not read out to him nor he was examined u/s. 342 of Cr.P.Code. These are mandatory provisions even in summary trial and non-observance of which vitiates the trial. Samuj Ali Vs. State (1976) 28 DLR 13.

 

Ss.342 and 537—Failure to draw the attention of the accused to the incriminating evidence under section 342 is curable by s.537 Cr.P.C. Majibur Rahman Vs. State (1987) 39 DLR 437.

 

S.344—Indefinite postponement of a criminal case is against the policy of law. Mrs. ShaharBanoo Ziwar Vs. Mrs. Wahida K-han (1986) 38 DLR 132.

 

S.344—No stay may be granted sine die or for indefinite period.—Pending the decision of civil suit, no stay for an indefinite period or sine die can be given in respect of criminal proceeding. Rafique Ahmed Vs. Badiul Alam (1987) 39 DLR 303.

 

Ss.344 and 561A—Power to stay criminal proceeding pending in die subordinate court is derivable from section 561A Cr.P.Code. Rafique , Ahmed Vs. Badiul Alam (1987) 39 DLR 303.

 

8.345(5)—Conviction u/s.379 Penal Code—Appeal on special leave, pending before the Appellate Division against conviction when a petition was moved for permission to compromise the dispute between the complainant and the accused (the parties being inter-related)—Compromise petitiorf allowed as law encourages compromise. Abdus Sattar Vs. The State (1986) 38 DLR (AD) 38.

 

Ss.364 and 164—Confession—Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State Vs. Abdur Rashid (1988) 40 DLR (AD) 106.

 

Ss.364 and 164—All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. The Stale Vs. Nizamul Islam (1988) 40 DLR 58.

 

—No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Khan Vs. State (1988) 40 DLR 186.

 

S.364—When examination of a Magistrate who recorded confession becomes necessary. The concession or statement, as the case may be, will be admitted into evidence without examining the Magistrate in the Court. It is only when the Court finds that any of the provisions of section 164 or 364 Cr.P.C. have not been complied with by the Magistrate concerned then it shall take evidence of the concerned Magistrate. Emran Ali Vs. Slate (1985) 37 DLR 1.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 & 364 Cr.P.Code shall be presumed that all the ingredients of s.80, Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by observing all the formalities prescribed by Ss.164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran Ali Vs. State (1985) 37 DLR 1.

 

Provisions of sections 164 and 364 are set out and explained in the light of the Privy Council's observation. It is a settled principle of law that the requirement of adherence to the provisions of section 164(3) Cr.P.C. is not a mere matter of form, but one of substance. Section 164 (3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed Vs. King-Emperor AIR 1936 (P.C.) 253. Construing sections 164 and 364 Cr.P.C., together, the Privy Council held that it would be an unnatural construction to hold that any other procedure was permitted than that which was laid down with such minute particularity in the sections themselves. Zaheda Bewa Vs. State (1985) 37 DLR 66.

 

Any Magistrate could depose to a confession made by an accused not induced by threat or promise, without showing or reading to the accused any version of what he said. Zaheda Bewa Vs. State (1985)37DLR66.

 

The Privy Council has already warned against the possibility Of covering up the incurable defects of an inadmissible confession by examining the Magistrate who recorded the confession. Incurable defects in the confession cannot be cured by subsequent examination of the Magistrate who recorded the confession. Such procedure will only enlarge the range of magisterial confessions. Zaheda Bewa Vs. The State (1985) 37 DLR 66.

 

Ss. 364 & 533—Admissibilily of evidence: Per Sajjad Ahmed Jan, J.—As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of confessional nature, it must conform with the requirements of section 364 of the Criminal Procedure Code. If it is proposed to use it as such in proof of that offence; if it falls short of a confession, it is to be recorded under section 164(2) of the Code in such manner as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. But if a confession is recorded in disregard to the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal Procedure Code and proved by aliunde evidence, if the error committed in non-compliance with the provisions of sections 164 and 364 of the Code ha,s not injured the accused in his defence. Mohammad Sarwar Vs. The Stale (1969) 21 DLR (SC) 182.

 

S.367—Particulars detailed in (he section to be complied with when writing a Judgement. Perfunctory way of disposing a case without following the provision of s.367 is condemned. Bangladesh Vs. Sakim Halsana (1987) 39 DLR 187.

 

S.367—There has not been any miscarriage of justice caused by non-compliance with the provisions of section 367 Cr.P.C. while acquitting the accused persons by the Magistrate though his Judgment was not in proper form. Nurul Huda Vs. Bhashanu Sardar (1988) 40 DLR (AD) 256.

 

8.367(1)—-Mere stating by the Appellate Court that the appeal is dismissed on merit and the order of conviction and sentence is confirmed without considering the evidence on record and the cases of the parties cannot be said to be a judgment on merit. Abul Basher Vs. The State (1988) 40 DLR 248.

 

8.367(1)—Section 367(1) relates to Criminal Court of original jurisdiction but the same has been made to apply to the Appellate Court except the High Court Division by reasons of section 424 Cr.P.C. Abul Basher Vs. The State (1988)40 DLR 248.

 

8.378—Function of the 3rd Judge to whom the case is referred. The plain reading of these sections shows that the third Judge to whom the case is referred need not agree with the finding of either of two judges. He is to give an independent opinion and then give his finding. Abdur Raziq Vs. State (1964) 16 DLR (WP) 73.

 

Section 395—For the purpose of conviction u/s. 395 there is sufficient evidence against the appellants as they were variously identified by more than One P.W. Ratan Khan Vs. State (1988) 40 DLR 186.

 

Section 401 Cr.P.C.—Empowers the Government to remit and suspend a sentence passed by a Court but for such remission and suspension of sentence the order of conviction is not reversed. It remains in force, but the convict due to an order of remission and suspension passed u/s. 401 Cr.P.C. is not to serve out the period of sentence so suspended and is not to pay the fine so remitted. Nasifuddin Miah vs. TheState (1988) 40 DLR 244.

 

Sec. 403—Same offence that was committed by the accused and as he has already been tried and convicted the second conviction is coram non judice and trial is vitiated as being hit by section 403 Cr.P.C.

 

The legislature has provided that separate charges referred to in illustration (a) to (h) of s. 235 Cr.P.Code respectively may be tried at the same time. The requirement of law is that separate charges could be made but they ought to have been tried in the same trial. Md. Abdul Latif Vs. State (1977) 29 DLR 157.

 

S. 410—Conviction by Sessions or Additional Sessions Judge—Irrespective of term of sentence appeal against such Conviction will lie to the High Court Division. Where an Assistant Sessions Judge passes sentence exceeding 5 years appeal lies to the High Court but when it is less than 5 years appeal will lie to the Sessions Judge. Md. Mustafa Manual Vs. State (1983) 35 DLR 362.

 

S. 417—Ingredients of clauses (a) and (b) of s. 423(1)—Appeal against acquittal provided in s. 417.

 

Section 423 (l)(a) expressly deals with an appeal from order of acquittal and 423 (l)(b) against an order of conviction. Section 423 (1) (a) empowers the Appellate Court to reverse the order of acquittal and direct that further enquiry be made or that the accused be tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. It is necessary to bear in mind that appeal against acquittal is to be filed under s.417 of the Code of Criminal Procedure and that High Court is the only forum where an appeal under section 417 can be filed against an original or an appellate order of acquittal. Even though the Court of Session is an appellate court no appeal against the order of acquittal passed by any of the aforesaid courts would lie to the Court-of Session. Md, Amir Hossain. Vs. The State (1976)28 DLR 371.

 

S.417.

Under s. 417 Government only can file an appeal against an order of acquittal. Authorised Officer, C.DA. Vs. State (1986) 38 DLR 27.

 

S. 417(3} Cr.P.C. read with s.S Limitation Act. High Court Division not competent to condone delay in case of an appeal filed after the expiry of 60 days under s, 417(3) Cr.P.C. from the date of acquittal.   Authorised Officer, C.D.A. Vs. State (1986) 38 DLR 27.

 

S.   417

(Read with sees. 5 and 29 Limitation Act.) The Limitation Act is a general law on limitation whereas the Criminal Procedure Code which prescribes filing appeal against acquittal under s.417 is a special act and in view of the provision of section 29 of the Limitation Act, provision of s. 5 of the Limitation Act cannot be invoked for extending time for filing appeal against acquittal., Authorised Officer, CD A Vs. State (1986) 38 DLR 27.

 

—On one count a person is acquitted and on another count he is convicted. In an appeal only against acquittal, conviction on the other count can not be touched and so the vice-versa. Power conferred by the expression "after the finding" in section 423(1) (b) does not include the power to alter or modify the finding of acquittal. The finding in the context, means the finding as to conviction and the power to alter the finding can be exercised only in cases as envisaged in the clause of the section itself. Md, Amir Hossain, Vs. The State (1976) 28 DLR 371.

 

—Sections 417, 236, 237, 238 and 423—A finding of acquittal can be converted into one of conviction only in an appeal u/s 417 which being in accord with s. 423 Cr.P.C. is the correct view taken in Bawa Sing's case. Mofizuddin Vs. The State (1988) 40 DLR (AD) 286.

 

Sections 417(1) & 1(2) —Appeal filed u/s 417(2) Cr.P.C. against the judgment and order of acquittal passed by a Special Tribunal is not maintainable—An" appeal against a judgment of Special Tribunal will have to be filed u/s 30(1) of the Special Powers Act—The Code of Criminal Procedure shall not affect any special form of procedure prescribed by any law. State Vs. Wanur Rahman (1988) 40 DLR 346.

 

S. 421—Proviso— Appeals from jail as well through the counsel. When an accused had preferred two appeals, one from jail and the other through counsel, to the same Court, the dismissal of the jail appeal is not a bar when the appeal filed through counsel is pending before the Court for hearing. So also the subsequent dismissal of the appeal filed through counsel, (on the ground that the Court had no jurisdiction in view of the previous dismissal of the jail appeal) is illegal. Shada Vs. Slate (1966) 18 DLR (WP)130.

S. 423—High Court Division is under obligation to examine the whole case on merits in appeals filed against conviction and cannot confine itself to the question of sentence only, even though that was the only issue pressed before it.

 

In view of the provision of s. 423 Cr.P.Code a duty is cast on the appellate court to dispose of the appeal on merits. Md. Jashimuddin Vs. The State (1986) 38 DLR (AD) 35.

—Sections 423, 236, 237, 238, and 417—A finding of acquittal can be converted into one of conviction only in an appeal u/s 417 which being in accord with s, 423 Cr.P.C. is the correct view taken in Bawa Sing's case. Mofizuddin Vs. The Slate (1988) 40 DLR (AD) 286.

 

S. 427—Chapter 39 Cr.P.C. deals with cases of persons 'arrested or detained without warrant by police officer or who appear or are brought before a Court at any stage of any investigation/enquiry or trial. This chapter does not deal with the cases of persons who are tried and convicted or acquitted, as their cases are specifically provided by sees. 426 and 427 of the Code. The earlier view that even the cases of convicted persons could be brought within the ambit of section 498 is no longer tenable. (Per Hamoodur Rahman. J.) Md. Ayub Vs. Md. Yakub. (1967)-19 DLR (SC)40.

 

Section 435—Bail to convicted persons dealt with in sections 426 and 435. Bail before conviction dealt with in sections 496 and 498. Md. Ayub Vs. Md. Yakub (1967) 19 DLR (SC) 38.

 

Sections 435 and 439, 339C(1)(4)(6)— Section 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused person—Impugned order by the Id. Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed— 339C(6) provides for counting of working days in determining the time for disposal of cases. Sultan Ahmed Vs. Golam Mostafa & ors. (1988) 40 DLR 85.

 

—Sections 435, 200, 202, 204 and 205C—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246.

 

S. 436— Sections 200, 202, 204 and 205.C Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh Vs. Yakub Sardar & ors. (1988) 40 DLR (AD) 246.

 

—After examination of the record under section 435 the Sessions Judge may direct further enquiry into any complaint case which has been dismissed by the Magistrate under section 203 Cr.P.C. without going into the merit of the case. On examining any record under section 435 or otherwise, the Sessions Judge may direct the District Magistrate or any other Magistrate subordinate to him to make, and the District Magistrate may himself make, further enquiry into any complaint which has been dismissed under section 203 or sub'-section (3) of section 204, or into the case of any person accused of an offence who has been discharged. Nurul Islam Vs. The State (1983) 35 DLR 111.

 

—District Magistrate has power to set aside an order of discharge passed by a First Class Magistrate. The two decisions holding a contrary view, reported in 4 DLR 369, as well as the cases in Cal. 268 and 551 and 7 ALL. 134 are held not correctly decided. Aflzali and others Vs. State (1959) 11 DLR , 501=(1960) 10 PLR 794=(1960) PLD (Doc) 197.

 

S. 437—Fresh evidence can not be allowed. The provisions of sec. 436 or 437 do not vest jurisdiction in the Sessions Judge or the District Magistrate to call for fresh evidence in order to fill up deficiencies in the prosecution evidence already in the record. AltafHossain Vs. Stale (1966) 18 DLR (WP)39.

 

S.437—All Magistrates exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purpose of sub-section (1) of s. 435 and s. 437. Haripada Biswas Vs. State, 32 DLR 91 (reversed by 34 DLR'(AD) 142.

 

S. 439—The words "final and shall not"— "authority" in s. 37(4) of industrial Relations Ordinance do not take away the High Court's jurisdiction exercisable under sees. 435 and 439 Cr.P.C. A.K.Khan Vs. Chairman, (1973) 25 DLR 192.

 

S.439— Sections 439 and 435, 339C.(1)(4)(6)—Sections 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused person—Impugned order by the Id. Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed— 339C(6) provides for counting of working days.in determining the time for disposal of cases. Sultan Ahmed Vs. Golam Mostafa & ors. ('1988) 40 DLR 85.

 

—The newly inserted section 439A of the Code of Criminal Procedure empowers the Sessions Judge to exercise all or any of the powers which may be exercised by the High Court Division under section 439 Cr.P.C. Sub-section (5) of section 439 Cr.P.C. provides that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. It follows that even the High Court Division has no powers to entertain any proceeding by way of revision at the instance of the party who could have appealed. All Hossain Vs. The Stale (1984) 36 DLR 188.

 

—High Court's superintending power-embodied in sections 435 and 439, Cr.P.Code—

Arrest under article 10 of P.O. 50 can only be when materials gathered during investigation throw reasonable suspicion, and not otherwise—Courts to see if provisions of the law (P.O. 50 of 1972) have been strictly followed and to step in whenever necessary, to prevent abuse of court's process and failure of justice. A.TMridha. Vs. The State (1973) 25 DLR 335.

 

—High Court's power of interference in exercise of its revisional jurisdiction in relation to cases before subordinate courts—In appropriate circumstances it can by resort to section 561A quash a proceeding.

--Sections 435 and 439 Cr.P.C. are inconsistent with the provisions of the P.O. No. 50 of 1972. A.T.Mridha Vs. The State (1973) 25 DLR 335.

 

S. 439A  

Sub-s. (5) of s. 439 provides that when an appeal to the High Court Division lies, but no appeal has in such a case been preferred, the High Court Division will have no power to entertain such a case in its revisional jurisdiction—Similarly when an appeal in view of the provision of section 439A lies to the Sessions Judge, but no appeal has been preferred to such a court, it will be incompetent to entertain that case in its revisional jurisdiction. All Hossain Vs. The State (1984) 36DLR 111.

 

—Sessions Judge acting under section 439A authorised to exercise any of the powers which may be exercised by the High Court Division under section 439. but in exercising the powers under section 439A the Sessions Judges do not exercise the jurisdiction concurrently with that of the High Court Division. Shafiqur Rahman Vs". Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Decisions of the Sessions Judges not being orders made under concurrent jurisdiction with that of the High Court Division cannot be immune from being examined by the High Court Division under section 439. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Shahabuddin Ahmeb, J.— Party who did not move Sessions Judge with, a revision application, is free to challenge the order of the Sessions Judge before the High Court Division by way of farther revision. But sub-section (4) of section 439, stands in the way and is in direct conflict with sub-section (4) of section 439, Shafiqur Rahman Vs. Nurul Islam Chowdhurv (1983) 35 DLR (AD) 127.

—So far as India and Pakistan are concerned there is no conflict such as is found in Bangladesh Code of Criminal Procedure by inserting sub-s.(4) in section 439 and adding sub-s. (2) in section 439A. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

Chowdhury A.T.M. Masud, J.—There are conflicts between sub-sections (1) and (4) of section 439 of the Code of Criminal Procedure and between sub-section (4) of section 439 and sub-section (2) of section 439A of the Code which have created anomalous position and there is need for legislative measures in removing the same. Shafiqur Rahman Vs; Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Despite the bar created by S.439A, High Court Division's power to call for records u/s. 439 not restricted. While inserting a new clause by substitution of sub-section (4), creating a bar on the exeVcise of High Court Division's revisional power against an order made by the Sessions Judge under section 439A, High Court's power under section 435 to call for records and examine the record of any proceeding before the Sessions Judge has not been disturbed. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

A person aggrieved by Sessions Judge's order passed u/s. 439A may move the High Court Division which the High Court Division shall entertain for doing justice when necessary. In hearing and determining a rule issued u/s. 439, the High Court Division discharges its statutory function of supervising the administration of justice on the criminal side. High Court Division's general power of superintendence to correct any illegality of the subordinate Court remains unhampered. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

2nd part of sub-section (4) of s, 439 not consistent with sub-section (4) of section 439A. Sub-section (4) says that once the Sessions Judge has been moved under section 439A and he has passed an order in the matter, none of the parties of the said proceedings shall be allowed- to move the High Court Division. So far as the opposite party in a case u/s. 439A (2) is concerned he is not debarred from moving the High Court Division. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

2nd part of sub-section (4) of section 439 is clearly inconsistent with the revisional powers of the High Court Division concerned by sub-section (1) of section 439 read with section 435 and sub­section (2) of section 439A. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—2nd part of sub-section (4) of s. 439 can only be termed as a legislature error. Supervisory power of the High Court Division has also been guaranteed under Article 109 of the Constitution. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—High "Court Division not powerless to correct any error and eliminate injustice. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Sessions Judge acting u/s. 439A acts as an ordinary criminal Court subordinate to the High Court Division. The Sessions Judge in dealing with a revisional application under section 439A acts as ordinary criminal court subordinate to the High Court Division. The Sessions Judge acts as an "inferior criminal court", and the proceedings before him cannot be immune from being examined by the High Court Division and may, in an appropriate case, be interfered with. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

.Order u/s. 439A (2) not being final, the revisional jurisdiction under section 439 cannot be said is not open to him. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Second part of the newly inserted sub-section (4) is not to be taken in its absolute literal sense so as to restrict the High Court Division's power conferred u/s. 439 (1).

 

Revisional jurisdiction of the High Court

Division cannot be said to have been curtailed or taken away by sub-section (4) of section 439. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

High Court Division in exercise, of its reyisional jurisdiction can disregard, in an appropriate case, an order of Sessions Judge u/s. WQA.Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—In respect of any proceedings before the Sessions Judge under section 439A. if the High Court Division is satisfied that interference is necessary to rectify any illegality and avoid miscarriage of justice it is competent to do so. Shafiqur Rahman Vs.. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

Sections 439A and 203—Whether the Sessions Judge has got power under S.439A. Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh Vs. Yakuh Sardar (1988) 40 DLR (AD) 246.

 

Ss. 43.9A and 561 A —High Court can quash criminal proceeding pending before a special court by virtue of its power vested under section mA.MahmudulIIaq Vs. Golam Moula (1985) 37 DLR 290.

 

Sessions Judge not competent to quash proceeding before a subordinate court acting under sections 435 and 439A. Mahmudul Haq Vs. Golam Moula (1985) 37 DLR 290.

 

S. 439A (2)—When there is a conflict between sub-section (2) of section 439A and sub­section (4) of section 439, the bar imposed by sub­section (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. The ratio decidendi of the decision of the Appellate Division in the case of Shafiqur Rahman reported in (1983) 35 DLR (AD) 127 is that the remedy which has been kept open under sub-section (2) of section 439A has been denied by sub-s. (4)'of section 439. Sub-section (4) of section 439 relates to the jurisdiction of the High Court Division in entertaining a proceeding in revision under section 439 against aji order passed by the Sessions Judge under section 439, and sub-section (4) puts a bar on the High Court Division for entertaining such proceeding, and when there is a conflict between sub-section (2) of section 439A and sub-section (4) of section 439, the bar imposed by sub-section (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. Alauddin. Vs. Jamaluddin (1985) 37 DLR 164.

 

S. 439(4) and S.439A(2)—Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s. 427 Penal Code without taking Magistrate's permission for investigation......

The Magistrate took cognizance of the offence and started proceedings against the accused-—Sessions Judge being moved against the Magistrate taking cognizan.ee of the offence u/s. 427 Penal Code rejected the prayer for quashing.

 

Held: Sessions Judge's order in view of the provisions of s. 439(4) Cr.P.C. is final. Siddique Ahmed Vs. The State, (1985) 37 DLR 223.

 

Sections 476 & 195—Section 476 is not independent of s.195 of the Code—Section 476 docs not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan Vs. State (1988) 40 DLR (AD) 26.

S. 476—Sections 476 and 195(a)(b)(c)—There is specified procedure and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of s.195 Cr.P.C. Abdul Hai Khan Vs. State (1988) 40 DLR (AD) 226.

 

Sections 476 and 195(l)(c)—Restricted application of clause(c) to be discarded.

 

—I am, therefore, inclined to think that reading Cl. (c) with sec.476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the court oniy to few offences (Committed pendente lite) as would be the practical result of such interpretation.

 

—The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hai Khan Vs. Slate (1988) 40 DLR (AD) 226.

 

—Sections 476 & 195 (a)(b)(c)— There is specified procedure, and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of 195 Cr.P.C. Abdul Hai Khan Vs. State (1988) 40 DLR (AD) 226.

 

Ss. 476 & 195(c). —Section 195(c) says that no court shall take cognizance of an offence under sections, 463, 471,475 or 476 of the Penal Code—(i) unless such offence is alleged to have been committed by a party in any proceeding in that court, and (ii) in respect of a document produced in such proceeding by such party.—except on a complaint by such a court made in writing and signed by the said court—Section 476 provides that when a court finds that an offence mentioned in section 195(c) has been committed by a person the court may after preliminary inquiry record a finding to that effect and make a complaint signed by the court and forward the accused to a Magistrate of competent jurisdiction. Saleha Khatun Vs. State (1987) 39 DLR 109.

 

S. 489—Maintenance allowance to wife— Allegation of divorce was subsequently set up by husband—Magistrate not legally entitled to make any alteration in allowance without first holding an enquiry under section 489 of the Code into question of divorce—[Muslim Family Laws Ordinance (VIII of 1961), section 7.] —State Vs. Mst. Taquir Fatima (1964) 16 DLR (WP) 104.

 

S. 494—Accused not legally discharged or pardoned cannot be examined as a witness—His evidence when given in such circumstances, wholly inadmissible. An accused not legally discharged or lawfully tendered pardon cither under section 337 or 494 Cr.P.C. continues to be an accused in the clutches of law.

He cannot be administered oath or examined as a witness in the case and his. evidence is wholly inadmissible against the other accused persons. All the incidents of his being an accused having been present in the case, the mere omission to mention his name in the formal complaint will not take him out of the category of an accused. An accused is always an accused until he ceases to be an accused in accordance with law. He can not therefore, give evidence as a witness because he has not been administered oath. Abdur Rashid Vs. State, (1970) 22 DLR 109.

 

S. 496—The word 'appear'—Docs not mean voluntary appearance but means' appearance in answer to a process of Court.

 

—The word "appears" in sections 496 and 497 obviously contemplate appearance in answer to a process issued by a Court. The view expressed in Sadiq Ali's case in regard to the word "appears" has to be modified to the extent that it does not mean voluntary appearance. Under sections 496 and 497, the Court can bail out a person only if he has been placed under actual custody or appears in answer to process issued or is brought before the Court by the police or by some other arresting authority. In other words, these sections apply where there has been an actual arrest allracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 39.

 

Sections 496-498—Provisions of sections 426 and 427 are invokable regarding bail matter only in case of conviction or acquittal after trial and to persons who have been convicted or acquitted after trial, sections 496-498 have no application. Solicitor Vs: Syed Sanwar All (1975)3.7 DLR (AD) 16.

 

S. 497— Bail can be granted to an accused person under sees. 496 and 497 of the Code, at any stage prior to conviction being recorded. The expression "admitted to bail" and "released on bail" have the same meaning.

 

A man entertaining apprehension of arrest but not yet been taken into custody may be released, in appropriate circumstances, on bail. On principle, there is no difference .between the case of a person against whom a warrant of arrest has been issued and one whose arrest, at the hands of the police, without a warrant, is imminent. The word "appear" applies to a person summoned to appear before Court as also when he voluntarily appears in Court. No bail, even in case of imminent police arrest, unless the person appears in Court and also in such cases bail can be granted only when refusal of it would cause irreparable harm to him. Sadiq AH Vs. State, (1966) 18 DLR (SC) 393.

 

S. 497(5)— Session Judge can cancel a bail. The power of a court of Session under section 498 Cr.P.C. is to be read along with the power of a Court of sessions under sub-section (5) of section 497 Cr.P.C. The aforesaid provisions read together empowers a Court of Session to cancel any bail earlier granted by the said Court. Abdul Moialeb Vs. Stale (1975) 27 DLR 665.

 

S. 498—Grounds of granting bail for offences involving death sentences—High Court not to embark on lengthy enquiry as to whether recorded evidence discloses an offence punishable under section 302 P.P. Code as that would be prejudicing the case on merits. The policy of the law enunciated in Muhammad Ayub Vs. Muhammad Yaqub and the State is that persons accused of offences punishable with death or transportation for life are not to be released on bail, except on the conditions laid down in section 497.

 

Under section 497 (1) if reasonable grounds appear that a person has been guilty of an offence punishable with death or transportation, bail may be granted only if the accused is a female or is under the age of sixteen years or is sick or infirm. Though none of those conditions applied in the case of the appellants, the learned Judge granted them bail by embarking on an inquiry whether the evidence recorded by the Committing Magistrate disclosed an offence punishable under section 302 of that the offence falls within the purview of section 325 PPC. This appraisal of the medical evidence was bound to affect the judgment of the trial court for it could be assumed that in granting bail the High Court had concluded that there did not appear grounds for believing that they had been guilty of an offence punishable with death or transportation for life. It was, therefore, idle to add; "without expressing any opinion on the merits of the case lest it should prejudice a party's case the petitioners are ordered to be released on bail". Muhammad Aslam Vs. State, (1967) 19 DLR (SC) 445.

 

S.498—Cancellation of bail (granted earlier) does not necessarily mean that the accused was put into police custody and hence no action under section 224 P.P.Code against him is jawful.

 

Held : The cancellation of the bail by the Sessions Judge did not in the circumstance of the present case, entail the consequence that he had to be ordered to be given into the police custody without there being a request in that behalf by the police itself. Sadiq Ali Vs. State, (1966) 18 DLR (SC) 393.

 

S.498—Bail before arrest. Document allegedly forged ex facie does not show any tampering nor indicate any forgery—There is no other material on record to support the allegation-Held : Accused has made a prima facie case to be entitled to bail before arrest. Shabeehul Hassan Vs. The State, (1970) 22 DLR (WP) 216.

 

S. 513—Provisions of these sections, explained,

The language of section 499 of the Cr.P.Code makes it abundantly clear that what is required is the furnishing of a personal bond by one or more sufficient sureties for an amount fixed to the satisfaction of the authority of the court concerned. Section 513 appears to be an enabling provision whereby the Court may permit an accused to deposit a sum of money in lieu of executing a personal bond and giving a surety of some persons. From a plain reading, section 513 does not appear to authorise a court to ask for cash security. R.K.M. Reza Vs. State (1981) 33 DLR 146.

 

S. 517—A court invested with jurisdiction to exercise powers conferred by s. 520 exercises that power irrespective of the fact whether he has or has no appellate or revisional power in regard to a particular case—A Court under section 520 can restore property to its rightful owner, if it has been given by a subordinate court, even though no appeal has been preferred against the order giving the property to somebody else. Satish Chandra Biswas Vs. Mainuddin Dai (1977) 29 DLR 277.

 

-Section 528 (2)(4) —Magistrate's power to recall case and try it himself or transfer it for trial. The reading of two sections, namely sections 528 and 192 Cr.P.C. clearly reveal that a case which has been transferred to a Magistrate could be withdrawn to the file of the District Magistrate or Sub-Divisional Magistrate.

 

To sum up the conclusions are:

 

(1) Transferee Magistrate can take cognizance of a person against whom evidence is led by the prosecution and try him; and when he does so, he docs under the original clause of section 190 Cr.P.C. when the cognizance is taken.

 

(2)  When a case is transferred it is the whole case and not merely the case of persons sent up by police and the trying Magistrate only is competent whether to issue processes or not against the rest of persons who have been mentioned in the complaint petition but not sent up for trial by the police.

 

(3)  Under the Code of Criminal Procedure a wide discretion is given to a Magistrate with respect to the grant or refusal process. Such discretion must be exercised judicially and the Magistrate will not abdicate his such discretionary function which is envisaged by the Code in favour of any other authority.

 

(4) Once the case is made over "for disposal" the transferor Court loses all jurisdiction to pass any order unless the case is recalled to his file.

 

(5)  High Court will be slow in disturbing the order of the Magistrate if such discretion is exercised in accordance with law. Abdul Jabbar Khan Vs. State (1980) 32 DLR (AD) 247.

 

Ss, 533 & 364—Admissibility of evidence : Per Sajjad Ahmed Jan, J.—As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found,to have been made in the course of the investigation of an offence and is of confessional nature, it must conform with the requirements of section 364 of the Criminal Procedure Code. If it is proposed to use it as such in proof of that offence; if it falls short of a confession, it is to be recorded under section 164(2) of the Code in such manner -as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. But if a confession is recorded in disregard to the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal Procedure Code and proved by aliundc evidence, if the error committed in non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused in his defence. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.

 

S.   537

—Ss. 537 and 342 —Failure to draw the attention of the accused to the incriminating evidence under section 342 is curable by s. 537 Cr.P.C. Majibur Rahman Vs. State (1987) 39 DLR 437.

 

Section 537 and 243—Violation of the manadatory requirements of section 243 in recording the individual statements of the.accuseds either in their language or in words as nearly as expressed by them is not curable by section 537. Conviction and sentence are not sustainable in law accordingly. All Newaj Bhuiyan Vs. Stale (1988) 40 DLR 398.

 

Ss. 537 and 145— The Barisal Bench came to the conclusion in a cryptic manner no doubt that the first party failed to establish a prima facie case of their locus standi to initiate a proceeding under section 145 Cr.P.C. In view of this conclusion there is no hesitation in saying that though the Sessions Judge prematurely intervened, passed the order correctly and legally and any such irregularity is curable by the provisions in section 537 Cr.P.C. Shajahan Vs. Sessions Judge (1986) 38 DLR (AD) 246.

 

—Sections   561A   ,   167,   190   and 173—Proceeding before a court starts when the competent court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the F.I.R. has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Makbul Hossain Vs. State (1988) 40 DLR326.

 

—Sections 561A and 344—Power to stay criminal proceeding pending in the subordinate court is derivable from section 561A Cr.P.Code. Rafique Ahmed Vs. Badiul Alam (1987) 39 DLR 303.

 

—Ss. 561A and 439A —High Court can quash criminal proceeding pending before a special court by virtue of its power vested under section 561A. Mahmudul Haq Vs. Golam Moula (1985) 37 DLR 290.

 

Sessions Judge not competent to quash proceeding before a subordinate court acting under sections 435 and 439A. Mahmudul Haq Vs. Golam Moula (1985) 37 DLR 290.

 

1840

Companies Act (VII OF 1913)

Citation: (1976) 28 DLR 46.

Subject: Companies

Delivery Date: 2018-08-26

Companies Act (VII OF 1913)

 

Sec. 83(5)(6)--AppIication for copies of the proceedings of the meetings of the company made not at the Company's Registered office at Dacca but at its company Head Office at Pabna-Application not properly made and hence no offence under S. 83 (6) committed.

When the applications for copies were not submitted at the Registered Office, the opposite party was not entitled to get them within the periods as prescribed by sections 36(2) and 83(5) and the petitioners were not "in default" in sending the copies.

 

Sub-section (6) of section 83 provides that if the required copy is not furnished within the time specified the company and its officers who are knowingly and wilfully in default shall be liable for prosecution. It is, therefore, clear that mere failure to furnish the copy is not an offence under this section. In the circumstances, no offence is found to have been committed by them on the alleged dates.

 

Moejuddin Vs. State (1976) 28 DLR 46.

1841

Conciliation Courts Ordinance (XLV of 1961)

Citation: (1968) 20 DLR 1100, (1969) 21 DLR (WP) 245, (1966). 18 DLR 725, (1969)21 DLR 105, (1968) 20 DLR 1076, (1966) 18 DLR (WP) 57, (1969) 21 DLR (WP) 19, (1967) 19 DLR 623, (1966) 18 DLR (WP) 57, (1969) 21 DLR (WP) 19, (1969) 21 DLR (WP) 273, (1969) 21 DLR 1

Subject: Conciliation Courts

Delivery Date: 2018-08-26

Conciliation Courts Ordinance (XLV of 1961)

 

S. 3 read with Part I of the Schedule. If an offence is triable by a Criminal Court, the fact that some other offences alleged in that case is exclusively triable by Conciliation Court, will not affect the power of the Criminal Court which will be competent to try both the offences.

 

Section 3 of the Ordinance lays dowri that in all cases falling under Part I of the Schedule the jurisdiction of Criminal and Civil Courts to try case enumerated thereunder is completely ousted. This section read with part I of the Schedule to the Ordinance makes it clear that in a case where the offences alleged are under sections 147, 323 and 324, Pakistan Penal Code the Criminal Court will have no jurisdiction to try that case.

 

In the instant case, one of the petitioners has been convicted under section 148, Pakistan Penal Code which is not included in Part I of the Schedule and as such the said offence is triable by the Criminal Court. When several offences are alleged to have been committed by the accused and one of them is triable by the Criminal Court, the Criminal Court has jurisdiction to try all the offences alleged in the case. For instance, if one of the offences with which the accused are charged is triable by the Sessions Court while there are offences triable by Magistrate of the 1st Class, then the case is triable by the Sessions Court and not by the Magistrate.

 

Abdul Razzaque Vs. The State (1968) 20 DLR 1100.

 

S. 3(a).-Conciliatibn Court's award in excess of its jurisdiction does not render the order of acquittal invalid unless the same is vacated in appeal. Conciliation Court gave an award that the trespasser to Government land would pay compensation to the Government. On appeal the Controlling Authority without issuing notice to the respondent and without hearing him set aside the award of the Conciliation Court and referred that case to the Magistrate for trial who found the respondent not guilty and acquitted him of the charge.

 

Held: The fact that part of the award in regard to payment of compensation to the Government assessed by the Conciliation Court was in excess of jurisdiction would not render the order of acquittal without lawful authority unless and until the same was properly vacated in appeal.

 

Controlling Authority's order setting aside Conciliation Court's award without notice to the respondent is illegal.

 

The order of the Controlling,Authority in the present case in setting aside the order of the Conciliation Court is illegal inasmuch as the order was passed at the back of the respondent without' issuing him a show cause notice.

 

The State Vs. Sakhi Jan (1969) 21 DLR (WP) 245.

S. 3(I)(a)--When evidence established that the case was one falling under section 325 P.P. Code, but the Magistrate framed a charge under section 323 P.P.C. that will not make the case triable by Conciliation Court.

 

Shaft Ahmed Vs. Gopal Mia (1966). 18 DLR 725.

 

--In the present case the complaint being one under section 325 of the Penal Code and the witnesses having also made out a case under that section, the case falls under section 325 of the Code which is an offence outside the purview of section 3(1) of the Ordinance.

 

Shafi Ahmed Vs. Gopal Mia (1966) 18 DLR 725.

 

-The fact that a charge urider section 323 was framed by the Magistrate would not alter the character of the case itself when it is a case falling "under section 325. Besides the law permits a Magistrate to alter a charge framed by him at any stage of the trial.

 

Shafi Ahmed Vs. Gopal Mia (1966) 18 DLR 725.

 

-Under what particular section an offence falls has to be ascertained by reference to the facts and circumstances-Accused tried under section 325 by the Magistrate but eventually the accused was convicted under section 323, this does not take away the jurisdiction of the Magistrate to convict under section 323.

 

Shaft Ahmed Vs. Gopal Mia (1966) 18 DLR 725.

—A Magistrate may try an accused under section 325 or 327, but he may eventually convict the said accused under section 323 of the Co3e. The result of the trial may be a conviction under section 323, but it would not make the case ifself one under section 323.

 

Shaft Ahmed Vs. Gopal Mia (1966) 18 DLR 725.

S. 3(1)- Criminal Court can either try the case itself which falls in section A of Part I of the Schedule or refer it to the Conciliation Court.

Although certain offences under sections 143 and 147 and offences under sections 341 and 447 of the Pakistan Penal Code fall within the exclusive jurisdiction of the Conciliation Court under section 3(I)(a) by operation of section 18 of the Ordinance, the police is not prevented from investigating a cognizable case notwithstanding the fact that the case relates to an offence specified in Section A of Part I of the Schedule, and if any such case is taken to a Criminal Court it is in the discretion of such Court either to try the case itself or to refer it to Conciliation Court under the said Ordinance. Abdus .

 

Sattar Vs. The State (1969)21 DLR 105.

--An offence under section 324 P.P.C. is not exclusively triable by the Conciliation Court.

The complaint in the present case being one under section 324 P.P.C., and the allegation therein • making out of prima facie case under that section, the Magistrate has jurisdiction to try the case and this jurisdiction will not cease, if afterwards, during the trial of the case it transpires to be one under exclusively section 323 of the Penal Code which is triable by the Conciliation Court.

The Criminal Court which had initial jurisdiction to deal with the matter has right to proceed with the trial of the case. The bar of section 3(I)(a) of the Conciliation Court's Ordinance, 1961 will affect the jurisdiction of the Criminal Court in the circumstances of the case.

 

Samed All Vs. Ejamuddin (1968) 20 DLR 1076.

 

.5--Failure to nominate representatives: If the case falls under Part II of the Schedule the failure to nominate representatives ''by any one of the parties brings about automatic failure of the conciliation and renders the Conciliation Court functus officio.

 

Mst. Saida Khanam Vs. Abdul Jabbar (1966) 18 DLR (WP) 57.

 

S.5(I)--An order passed by the Chairman himself or by the two representatives alone would not be an order by the Conciliation Court. The term "Conciliation Court" means the Chairman plus two representatives.

 

Arbab Hafizullah Khan Vs. Mir Badshah (1969) 21 DLR (WP) 19.

 

S.5(2)r-Bias of the Chairman vitiates the proceedings! Kabir Ahmed Vs. S.D.O., Chiitagong (1967) 19 DLR 623.

S.7--Imprisonment or fine cannot be awarded by the Conciliation Court, but only compensation to the extent of Rs. 250 (except in case under 428 or 429 P.P. Code).                   

 

The Conciliation -Court Ordinance does not allow punishment either by imprisonment or fine but simply provides for compensation to the aggrieved party by the accused party and further that the compensation that may be awarded shall not exceed Rs. 250/- unless the offence is one of more serious nature, namely, under section 428 or 429 of the P.P.C., in which case the amount may exceed Rs. 2507- but not Rs. 500/-

The order of the Conciliation Court for payment of compensation in excess of Rs. 250/- on a charge under section 341 P.P.Code is without lawful authority.

 

Kabir Ahmed Vs. S.D.O., Chittagong (1967) 19 DLR 623.

 

S.8(l)--Res judicata— Not applicable when decision is without jurisdiction :

The bar of res judicata is raised only when the Conciliation Court has decided the matter in accordance with law.

 

Mst. Saida Khanam Vs. Abdul Jabbar (1966) 18 DLR (WP) 57.

 

S. 10--In case of failure of conciliation parties left to seek its remedy in Courts : The section provides that in case of failure of conciliation in the circumstances mentioned in the section, the parties to a dispute may pursue their remedy in Courts competent to try such suits before the passing of the Ordinance.

 

Mst. Saida Khanam Vs. Abdul Jabbar (1966) 18 DLR (WP)57.

 

S. 17--Order passed by the Chairman alone purporting to act under sub-section (2) of section 17 would be without jurisdiction. In other words, the order passed by the Conciliation Court transferring . the complaints which are exclusively triable by it could not be validly transferred under the signature of the Chairman alone.

 

Under sub-section (2) of section 17, the Conciliation Court without the intervention of the Controlling Authority can if it is of the opinion that the gravity of the offence in the ends of justice required that instead of payment of compensation the accused should be punished and transfers the file to the Ilaqa Magistrate directly.

 

Abrab Hafizullah Khan Vs. Mir Badshah (1969) 21 DLR (WP) 19.

 

S. 17(l)--Contro!!ing Authority when can transfer a case to Criminal Court : The Controlling Authority can transfer a case under section 17(1) of the Conciliation Courts Ordinance when the case is actually pending before a particular Conciliation Court and when he considers such transfer is necessary for the ends of justice and public interest but where a case is not pending before the Conciliation Court but is sent directly by the Controlling Authority to a Criminal Court the latter is not competent to "try the case.

 

Chanan Din. Vs. Pakistan Government (1969) 21 DLR (WP) 273.

 

S. IS-Criminal Court can either try the case itself which falls in section A of Part I of the Schedule or refer it to the Conciliation Court.

 

Abdus Sattar Vs. The State (1969) 21 DLR 105.

 

-Unless a cognizable offence, such as one under section 341 P.P.Code, has been investigated into by the police and report thereof submitted to the Magistrate, the Magistrate cannot, simply because it. is a cognizable offence, try the offence himself—such case In ordinary course is triable by the Conciliation Court.

 

So far as the present cases are concerned there was no investigation by the police although an offence under section 341 is a cognizable offence. The question is whether merely because a case is a cognizable one the Magistrate has jurisdiction to take cognizance of it instead of referring it to conciliation. The section does not indicate that the Magistrate can take cognizance of an offence specified in section A of Part I of the Schedule merely on the basis of the fact that it is a cognizance of an offence.

 

Jamshed AH Vs. Shahabuddin {1968) 20 DLR 503.

-What the word "may" means: The word "may" in the section is clear that it is up to the Magistrate to try the case or refer it to the Conciliation Court. So in this respect very wide discretionary powers are given to the Criminal Courts. A Conciliation Court entertains a case falling under section "A" of Part II only when both the parties agree to that forum and not otherwise.

 

Abdur Rahman Vs. The State (1968) 20 DLR (WP)' 9.

 

S. 18. Magistrate can try an offence under section 341 P.P.C. only on a report submitted by the police after investigation and not otherwise. Offence under section 341 PP.Code is in view of clause (a) of section 3(1) of the Conciliation Courts Ordinance triable by a Conciliation Court under that Ordinance.

 

If the Magistrate tries an offence falling under section 341 P.P. Code which has not been investigated by the police, but takes cognizance of the case on the complaint of a person who is not authorised to hold investigation and. convicted the person accused under section 341 P.P. Code the trial and conviction will be illegal.

 

Manzur Hussain Vs. The State (1970) 22 DLR (SC) 122.

 

S. 18(I)--Conciliation Court's exclusive jurisdiction in a ease referred to it without taking it to the Court for trial. Police investigated a case under section 447 P.P.C. (encroachment of State's land) but instead of referring it to the Criminal Court as required under section 18(1) of the Conciliation Courts Ordinance, they referred it to the Conciliation Court direct. Held : Where the case was not put in the Court, section 18 was not attracted and the case was exclusively triable by the Conciliation Court.

 

The State Vs. Sakhi Jan (1969) 21 DLR (WP) 245.

 

S. 19(3)—Compensation money has to be realised through certificate procedure under the Public Demands Recovery Act. Institution of execution proceedings in the Civil Court for realisation of the amount of compensation by the Conciliation Court to be paid as compensation in a case under section A of Part I of the Ordinance is not authorised by the Ordinance. Section 19(3) of the Ordinance provides that if the Chairman of the Conciliation Court directs, such .compensation may be recovered as arrears of land revenue through certificate procedure under the Public Demands Recovery Act.

 

Kabir Ahmad Vs. S.D.Q., Chittagong (1967) 19 DLR 623.

 

 

1842

Conciliation Courts Rules, 1962.

Citation: (1966) 18 DLR (WP) 57,

Subject: Conciliation Courts

Delivery Date: 2018-08-26

Conciliation Courts Rules, 1962.

 

R. 13--When a Chairman is eliminated his substitute can be appointed by the Controlling Authority alone—such appointment by Members of the Council illegal.

 

Rule 13 provides that the Controlling Authority alone is empowered to appoint any Member of the Union Committee, not being a member nominated by any party as his representative to act as Chairman of the Conciliation Court. The appointment of a certain person as Chairman by the members is not therefore an appointment as contemplated by sub-section (2) of section 5 read with rule 13(1), and it, hence, follows that the constitution of the Conciliation Court is improper. Said

 

Khanam Vs. Abdul Jabbar (1966) 18 DLR (WP) 57.

 

R. 16--Party absenting himself--Conciliation fails --Chairman bound to issue failure certificate—Party entitled to seek its remedy in ordinary Courts.

 

In all cases falling under Part II of the Schedule the non-appearance of the petitioner before the Chairman of the Committee or the Chairman of the Conciliation Court automatically brings about the failure of the Conciliation Court and the jurisdiction of the Chairman of the Committee or the Conciliation Court which is otherwise seized of the case is put to an end by the mere expedient of the petitioner absenting himself and no option is left whatsoever with them but to (I) record the finding that the conciliation has failed and (b) issue a certificate to that effect. The word "may" in rule (b) is mandatory and not permissive.

 

As already indicated the petitioner not entered appearance before the Conciliation Court and, therefore, under rule 16, the Conciliation Court was under statutory obligation to record a finding that the conciliation has failed and this finding would render the Conciliation Court functus officio and, therefore, any decision given in the case would be without jurisdiction and as such vitiated and the party against whom such a decision is given can ignore it and need not file an appeal to the forum provided by the Act in cases where decisions are given by the Tribunal not competent to decide the cases. Said

 

Khanam Vs. Abdul Jabbar (1966) 18 (WP) 57.

 

 

1843

Confession retracted

Citation: (1959) 11 DLR (SC) 91 (1959) PLD (SC) 317, (1960) 12 DLR (SC) 156 (1960) PL8 1962 (1960) PLb (SC) 313, 8 DLR (Short Notes) 62, (1958) 10 DLR 580)(1959) PLD (Dae) 226, (1964).16DLR(SC)295, (1964)16 DLR (SC) 598, 3 PLD (Bal). 7, 6 PLD (Lah) 210, 4 DLR 311

Subject: Confession

Delivery Date: 2018-08-26

Confession retracted

 

As regards the confession which is retracted reasons given for retracting it must be found to be false before it can be acted upon. But where it is found that previous concert was highly improbable and the reasons for retracting the confession are untrue there can be no justification for declining to rely on it for the purpose of corroboration.

 

Rafiq Ahmed Vs. State. (1959) 11 DLR (SC) 91 (1959) PLD (SC) 317.

 

Its evidentiary value against a co-accused. The fact that a confession has been retracted has nothing to do with the question of its being of a voluntary nature and true and as such cannot be ruled out of consideration merely on the ground of its being retracted. The retraction by a co-accused was wholly immaterial once it was found out that it was voluntary as well as true.

 

Joy gun Bibi Vs. State (1960) 12 DLR (SC) 156 (1960) PL8 1962 (1960) PLb (SC) 313.

 

--Confession retracted—when not supported by corroboration. Though it is legal to convict an accused on a retracted confession even though it is not corroborated, yet in fact an, accused person can never be convicted on an uncorroborated retracted confession in the absence of corroborative evidence.

 

Abdus Samad Vs. Crown 8 DLR (Short Notes) 62.

 

-Retracted: Corroboration required is not a rule of law but is a iule of prudence.

 

State, Vs. Badsha Khan & Ors (1958) 10 DLR 580)(1959) PLD (Dae) 226.

 

--Confession (in a murder charge) retracted—when held sufficient (evidence on record not by itself sufficient to bring the charge home) for conviction for murder. Accused made a confession before a Magistrate that he along with one G killed the deceased, though he attributed the main share of the guilt to G, saying that he himself participated in the crime because G offered to pay him money. The circumstances were that the man was killed in the house of the accused at night and further he had a motive to kill the deceased, while G had no motive.

 

At the trial he took the plea that the confession was the outcome" of persuasion by police. By this he did not retract everything he said in his confession but merely added that the part he played in killing the man was owing to threat by G to which he yielded to save his life.

 

Held: The burden lay very heavily on the accused to show how he could escape responsibility for the killing of the deceased. In his confession, he clearly admitted that he joined in the killing voluntarily and for a price. He put it as if the initiative for the killing came from G, although no enmity of any kind was urged between G and the deceased. In fact the motive and therefore the initiative lay with the accused alone, and the murder having been committed in his house and in his presence so that he was under a duty of explaining how it happened, all his statements must be read together for the determination of the truth.

It is significant that the relieving element of duress was raised at a much later stage than the making -of the confession. That is by itself sufficient for discarding the allegation of duress and for accepting the confession.

 

Qibla Mam Vs. State. (1964).16DLR(SC)295.

 

--As against the maker himself his confession, judicial or extra-judicial whether retracted or not, can in law validly form the sole basis of his conviction--One tainted evidence cannot corroborate another such evidence.

Retracted confessions, whether, judicial or extrajudicial, could legally be taken into consideration against the maker of those confessions himself and if his confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, Judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believess that it is true and voluntary and was not obtained by torture or coercion or inducement.

 

The proposition that a retracted extrajudicial, confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence.

 

State Vs. Minhum (1964)16 DLR (SC) 598.

--Admitting part of allegation but denying commission of offence charged-Cdnfession may be taken into consideration with other corroborative evidence.

 

Crown Vs. Khurshid 3 PLD (Bal). 7.

If a confession is partly inculpatory and partly exculpatory the exculpatory part can be ignored if there is evidence to show that it is false.

 

Akbar Vs. Crown 6 PLD (Lah) 210.

—Retracted confession of two accuseds -Admissible as a rule of prudence. PLD (1957) (Lah) 956.

-The value of a retracted confession, as against a co-accused is practically nil and unless the other evidence against the co-accused is substantially that which will stand on its own legs and justify a conviction, the retracted confession itself cannot, support a conviction.

 

Ila Milra Vs. Crown('f^Z) 4 DLR 311 (316 left-hand col.)

—The direction to the Jury that a retracted confession can not be evidence as against the accused unless the confession has been corroborated in material particulars is wrong and amounts to misdirection. The proper direction should be that the value of a retracted confession as against the co-accused is practically nil, and unless it will stand on its own legs and justify a conviction, the retracted confession itself should not be used in any way to support a conviction,

 

I\a Milra Vs. Crown 4 DLR 311(316.)

Retracted-requires corroboration before it can be acted upon-Corroboration by tainted evidence, no corroboration at all. Sabjan Bibi Vs. Slate (7967) 0 Dl.R 471.

-In the case of retracted confession it has to be seen whether they are corroborated in some material particulars or not-Evidence of recoveries in accordance with the confession is a material corroboration.

 

Aktar Vs. Crown 6 PLD (Lah.) 210.

 

—Confession as against the maker, himself is enough to support a conviction, even if not corroborated. The rule of law which requires a confession (retracted) to be corroborated has only application as against a co-accused.

 

Aftabuddin Vs. State (1956)'8JDLR 554.

 

--Retracted confession requires to be corroborated for conviction of a co-accused.

 

Aftabuddin Vs. State (1956)8[DLR 554.

 

-Stronger independent corroboration in material particulars required in the case of retracted than in that of unretracted confession.

 

Crown Vs. Md. Hanif (1951) PLD (Bal) 25.

 

Confession   judicial   or   extra-judicial: Can be the basis of a conviction if it is believed to be true and voluntary whether the confession is judicial or extra-judicial, whether retracted or not. It is true that accused retracted the'confession but that retraction is immaterial when it has once been held to be voluntary and true. Extra-judicial confession can be acted upon when it is found to be voluntary and true and is also corroborated in material particulars by other independent sources and the fact that such 'confession is subsequently re­tracted is immaterial.

 

Ayesha Khatun Vs. The State (1967) 19 DLR 818.

 

-As against the maker himself his confession, judicial or extra-judicial, whether retracted or not, can in law validly form that sole basis of his conviction if the court is satisfied and believed that it is true and voluntary. Retracted confession, whether judicial or extra-judicial, can legally be taken into consideration against the maker of the confession himself and if his confession is found to be true and voluntary then there is no need at all to look for further corroboration.

 

SuKhendra Das Vs. The State (1969) 21 DLR 303.

 

—Confession before the Magistrate was retracted in the Sessions Court. If the Sessions Court is satisfied that confessions is not only true but also voluntary, it can impose sentence of death on the uncorroborated confessional statement.

 

The State Vs. Punardhar Joy dhar (1979) 31 DLR 312.

 

--CONFESSION, retracted, may form basis of conviction if believed to be true and voluntary-Its probative value ig however meagre. For conviction on retracted confession corroboration necessary.

 

State Vs. Fazu Kazi (1977) (SC) 29 DLR 271:

 

1844

'Connivance', to 'connive'

Citation: (1978) 30 DLR (SC) 58.

Subject: 'Connivance', to 'connive'

Delivery Date: 2018-08-26

'Connivance',  to  'connive'

 

The dictionary meaning of the word "connivance" is, according to the Concise Oxford Dictionary "conniving (at, in), tacit permission" and that of the word "to connive" is to wink at what one ought to oppose.

 

Abdul Ali Vs. State (1978) 30 DLR (SC) 58.

1845

CONSTITUTION OF BANGLADESH 1972 Art. 32

Citation: (1979) 31 DLR (AD) 1, (1976) 28 DLR 305, (1981) 33 DLR 348,(1980) 32 DLR (AD) 110, (1978) 30 DLR 103, (1988) 40 DLR (AD) 196, (1988)40 DLR (AD) 196, (1988) 40 DLR (AD) 178, (1976) 28 DLR 259, (1982) 34 DLR (AD) 125, (1980) 32 DLR 142

Subject: CONSTITUTION OF BANGLADESH

Delivery Date: 2018-10-02

CONSTITUTION OF BANGLADESH

1972 Art. 32

 

Right to the protection of law and of right to life and liberty. According to Article 31, to enjoy the protection of the law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or properly of a person shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law.

 

Any authority empowered under a detention law to make an order of detention has the duty to form its opinion as to the necessity of making such an order on the basis of some relevant materials, and the High Court is required to examine those materials to see whether such materials have some rational probative value.

Since the Court is not competent to examine the adequacy or sufficiency of the grounds, which under the law is within jurisdiction of the detaining authority, it is not in a position to say that the good grounds, after excluding the bad ones, are sufficient for the satisfaction of the detaining authority. The burden having been upon the detaining authority to establish the legality of the order of detention the Court under the said circumstance cannot but declare that the detention cannot be sustained. Abdul Latif Mirza Vs. Bangladesh (1979) 31 DLR (AD) 1.

 

Articles 3.3(2) & 35(2)—None of the provisions provided in the three articles observed.: Detention in violation of the fundamental rights guaranteed by the Constitution illegal. According to Article 31 of the Constitution, no. action detrimental to the liberty of a person can be taken except in accordance with law, and under Article 33(3)(2) of the Constitution no person can be detained in custody without any valid order of the Magistrate. Moreover under Article 35(3) every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. In this particular case, there has been a clear violation of the fundamental rights referred to above as guaranteed under the Constitution.

 

It is stated by the learned Assistant Attorney-General that the case is pending before the District Scrutiny Committee for necessary report and recommendation but that cannot be taken as valid ground for depriving the petitioners of their fundamental right of speedy trial guaranteed under the Constitution. Belayet Hossain Vs. D.C. Barishal (1976) 28 DLR 305.

 

Art. 35(2)

—Ibid-

Arts. 53 & 52—Under Article 52 President or the Vice-President is immune from court's proceeding only when they are actually in office-Article 53 speaks of impeachment of the President only when he is in office. Regulation 11 of 1975-amendmcnl of, by MLR 33/1975.

 

Subsequent inclusion of the word "president" in Regulation 11 of 1975 not malafide. Kh. Moshtaque Ahmed Vs. Govt. of Bangladesh (1981) 33 DLR 348. [Reversed by Appellate Division 34 DLR (AD) 222]

Arts. 55—(relating to the Cabinet) and modified Article 148 and form I of the 3rd Schedule (relating to President's oath of office); except these the Constitution of Bangladesh as it stood then was kept intact.

 

Chief Justice of Bangladesh under Article 94 is the head of the Judiciary of the country. State Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.

 

Article 102—High Court's power to issue writs! In 1899 section 491 of the Criminal Procedure Code took away the power of the High Courts of Calcutta, Madras and Bombay to issue writs of Habeas Corpus and empowered them to issue 'directions in the nature of Habeas Corpus subject to limitations. In 1923 by an amendment of section 491 the power to issue directions in the nature of Habeas Corpus was also conferred on other High Courts, Constitution has conferred fundamental rights and Art. 102 has empowered the High Court to issue certain writs, inter alia, "so that the court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". The High Court is enjoined upon to satisfy itself that the person is not being held in custody(a) without lawful authority or (b) in an unlawful manner. Kripa Slndhu Ilazra Vs. State (1978) 30 DLR 103.

 

—Constitution of Bangladesh, 1972 (as amended)—Art 102—A litigant has no inherent right in procedural remedy. Since the Appellate Division of the Supreme Court has observed in 35 DLR (AD) 127 that there is no scope for second revision, the matter ends there. That does not mean that of necessity a writ jurisdiction may be invoked. Haji Golam Ilossain Vs. Abdur Rahman Munshi & ors. (1988) 40 DLR (AD) 196.

—A writ petition does not lie against the decision of the Sessions Judge u/s. 439A Cr.P.C. A litigant has no inherent right in procedural remedy. Appeal or revision must be given expressly by law. A writ jurisdiction cannot of necessity be invoked. Haji Golam Ilossain Vs. Abdur Rahman Munshi & ors. (1988) 40 DLR (AD) 196.

 

Article 102(2)(a)(i)—Read with section 439A of the Code of Criminal Procedure (V of 1898)—The Sessions Judge having reversed finding of possession made in favour of the appellant by the Magistrate, the appellant cannot file writ petition in the nature of mandamus under Article 102(2)(a)(i) of the Constitution. Haji Golam Ilossain Vs. Abdur Rahman Munshi & ors. (1988)40 DLR (AD) 196.

 

Article 102(2)(1)—The High Court Division clearly proceeded on a misapprehension of the nature of an application under Article 102(2)(i) of the Constitution. Sajeda Parvin Vs. Govt. of Bangladesh (1988) 40 DLR (AD) 178.

 

—The Dhaka High Court and after 1972 the High Court of this Court have consistently held that where the petitioner has challenged his detention as illegal and the detention is continued by successive orders and the detaining authority fails to show that any of the successive orders of detention is illegal, the rule does not become infructuous. Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178.

 

The fact of detention and not the date of order of the detention is the material point. Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178.

 

Article 102(2)(b)(l)—High Court Division which took the view "This rule therefore has become infructuous after revocation of the impugned (original) order and the detenu is in detention not under the said order but under the subsequent order which is not the subject-matter of the present rule" missed the tenor of Article 102(2)(b)(l) which confers jurisdiction on it to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner." Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178."

 

—WRIT OF HABEAS CORPUS—Nature of enquiry—H.C. Division's view erroneous.

 

—Considering the nature of enquiry as it is there is no hesitation in saying that the High Court Division has erroneously taken the view that the Rule(issued by it) has become infructuous as because fresh order had been passed which was not speaking technically, a subject-matter of the Rule. To 'say the least, the view that was taken in the case of Abdul Latif Mirza 31 DLR (AD) I was overlooked". Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178.

 

In 31 DLR (AD) 1, it was held that the order of detention for its validity is to be tested on the basis whether the detaining authority had before it material which gave a rational probative value of the order and are not extraneous to the purpose of the Act and beyond which the order of detention is immune from challenge except j/i the ground of malafide. Precisely that is-liie contention that has been raised in this proceeding before us. Sajeda Parvin Vs. Govt of Bangladesh (1988) 40DLR (AD) 178.

 

Malafide vitiates everything and the point is so settled that it needs no re-iteration by referring to the decided case [Ref: 34 DLR (AD) 222]. Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178.

 

Order of detention was passed for collateral purposes. Hence the detention is illegal. Sajeda Parvin Vs. Govt of Bangladesh (1988) 40 DLR (AD) 178.

 

Article 102(2)(6)—Law imposes an obligation on the High Court to see if the satisfaction of the detaining authority about grounds of detention has a rationale basis since such order is justiciable in Court. Md. Humayun Kabir Vs. State (1976) 28 DLR 259.

 

—'Satisfaction' must be based on reasonable grounds. Ascertainment of reasonable grounds is essentially in the nature of a judicial or at least a 'quasi-judicial function. The Constitution guarantees that every citizen shall be dealt with strictly in accordance with law. In view of the constitutional provision, the executive also is required ta exercise the power of making detention orders, judicially. The right given to the detenu to make representation makes it all the more necessary to make detention order reasonable and valid grounds sufficient to satisfy the judicial conscience. Md. Humayun Kabir Vs. State (1976) 28 DLR 259.

 

Art. 102 (5) —Authority's order assailed as passed malafide. In order to strike down an order .passed by an excepted authority within the purview of sub-article (5) the facts constituting malafide must have correlation with jurisdiction, and be analogous to an order made coram non judice. Neither in the sub-continent, nor American or English courts have ordinarily interfered with the order of the military court. Jamil Haq  Vs. Bangladesh (1982) 34 DLR (AD) 125.

 

Art. 109—The Appellate Tribunal set up u/s 30 of the Special Powers Act must be deemed to be a Court subordinate to the Supreme Court and subject to the superintendence and supervision of the High Court Division of the Supreme Court.

 

Any judicial tribunal purely and exclusively exercising the functions and powers of a Court of Law does not cease to remain as a court simply because of its description as a Tribunal. Appellate Tribunal under the amended version of section 30 of the Special Powers Act being purely a judicial tribunal exclusively exercising the functions of a Court of Law in its appellate jurisdiction under the Code of Criminal Procedure, is a Court subordinate to the Supreme Court under Article 114 of the Constitution and is subject to the superintendence and control of the High Court Division of the Supreme Court under Article 109 of the Constitution. Sahar All Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

Art. 114—A Court according to Art. 152(1) of .the Constitution, is a court of law—Under section 6, Cr.P.Code. Courts of Session (that is Sessions Judge, Addl. and Asst. Sessions Judge) and of the Magistrate (1st, 2nd. and 3rd classes) are criminal Courts—Under sec. 26(2), Special Powers Act, every Sessions Judge, Addl. Sessions Judge and Asst. Sessions Judge shall be Special Tribunals for trial of offences under S.P. Act. Consequently a Special Tribunal being a Court of law is a Court as defined in Art. 152(1) of the Constitution. This being so, these Courts (being subordinate to the Supreme Court) are amenable to the superintendence and control of the Supreme Court's High Court Division under Art. 114.

A Special Tribunal under the Special Powers Act is not only a Criminal Court as classified under section 6 of the Code but is also a Court meaning a Court of law as defined in Article 152(1) of the Constitution. Such definition being applicable to the reference of Court made in Article 114 read with Article 109 of the Constitution.

 

The Court of Session and First Class Magistracy having constituted the Special Tribunals and Additional Special Tribunals are already under the superintendence and control of the High Court Division of the Supreme Court being subordinate thereto, both under the provisions of the Code of Criminal Procedure and the Constitution. Before the amendment of section 30 of the Special Powers Act appeal against the decision of the Special Tribunal lay to the High Court Division but after amendment a separate Appellate Tribunal has been set up to hear appeals against Special Tribunal against whose decision no further appeal or revision lay to High Court, something unprecedented in legal history.

 

Considering the aforesaid provisions of the amended version of section 30 of the Special Powers Act, the High Court Division was the direct Appellate Court over a Special Tribunal, whereas in the amended version the High Court Division has been substituted by an .Appellate Tribunal constituted as a person who is or can be a Judge of the Supreme Court, exercising all the powers and following the same procedure as that of the High Court Division under the Code of Criminal Procedure, but keeping such Court outside the purview and pale of the Supreme Court as such. Any Judgment or sentence of the Appellate Tribunal shall, not only be final but no Court including the Appellate Division of the Supreme Court shall have any such normal power to revise any such appellate judgment and sentence even when it involves the confirmation of a death sentence. This is an unprecedented innovation in the history of common law countries. Sahar All Vs. A.R. Chowdhury (1980) 32 DLR 142.

 

1846

CONSTITUTION OF INDIA, 1950.

Citation: (1988) 40 DLR (AD) 178.

Subject: CONSTITUTION OF INDIA

Delivery Date: 2018-10-02

CONSTITUTION OF INDIA,   1950.

 

Article 226—The Indian Judicial view is completely different from that of Bangladesh Judicial view on the matter. It is the approach of subjective satisfaction that is being made in the preventive detention cases. It will be a dangerous slip to go into iJiose decisions. Sajeda Parvin Vs. Govt. of Bangladesh. (1988) 40 DLR (AD) 178.

 

1847

Constitution of Pakistan (1956)

Citation: (1960) 12 DLR (SC) 100, (1958) 10 DLR (W.P.) 71; (1958) PLD (Lahore) 553, (1959) 11 DLR (SC) 239 -(1959) 10 PLR 1315 (1959) PLD (SC) 322, (1959)11 DLR (SC) 126 (1958) PLD (SC) 499, (1960) 12 DLR (SC) 225 (1959) PLD (SC) 258, (1964) 16 DLR (SC) 55, (196

Subject: Constitution of Pakistan

Delivery Date: 2018-08-27

Constitution of Pakistan (1956)

 

Art. 4Law in conflict with fundamental right—void, only in the sense that the conflicting part of it is to be ignored or disregarded—The law itself does not cease to exist.

 

Abdul Mowla Bepary Vs. State. (1960) 12 DLR (SC) 100.

 

Arts. 4 & 5 read with items (8) & (81) of sec. 167, Sea Customs Act. Items (8),(81) of sec. 167 of the Sea Customs Act are discriminatory against the equality clause of Art. 5 and as such they are void. The principle laid down in 9 DLR (SC) 117 in Waris Mia's case has been followed.

 

Hasan All Vs. Collector of Land Customs (1958) 10 DLR (W.P.) 71; (1958) PLD (Lahore) 553.

 

Art.6--Provision of sec. 167(8)(81) of the Sea Customs Act, not void in their entirety. Penal provisions of items (8) and (81) of sec. 167 of the Sea Customs Act (as they existed before Act. 34 of 1957) were not void in their entirety. An offender could complain only if the harsher of the two alternative punishments provided by these two items was imposed on him but when he had been dealt with under the more lenient provision; conviction is valid and involves no infringement of Art. 6 of the Constitution.

 

Kalipada Saha Vs. State. (1959) 11 DLR (SC) 239 -(1959) 10 PLR 1315 (1959) PLD (SC) 322.

 

—Legislature's power to give retrospective effect to a piece of law is controlled by Art. 6. The Article provides that an act not punishable at the time the act "is done cannot be made punishable afterwards. The Sea Customs Act though amended cannot be retrospectively operated in contravention of Art. 6 of the Constitution. Hassan All Vs. Collector of Land Customs, Lahore.

(1958) 10 DLR (WP) 71 (1958) PLD (Lahore) 533.

 

Art.7--Personal liberty-Statutes imposing restriction on-provisions must be strictly complied with. PLD (1957) (Lah.) 962.

 

Art.7--Power of the Constitution making body in making law of a special nature. When Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention, it lays down law in a field which is included in the larger subject of the liberty of persons under the law. While Constitutions are largely concerned with laying down principles which shall be followed in the making of laws, there 13 nothing to prevent a constitution-making body from making law of a special nature dealing with a special subject in the course of making a Constitution.

 

Abdul Aziz Vs. Prov. of West Pakistan (1959)11 DLR (SC) 126 (1958) PLD (SC) 499.

 

Art. 7(I)--Denial of the right to a person to consult a lawyer and be defended by him makes the trial void. (1956) 8 DLR 526 (541-542)

 

-Denial of the right to be defended by lawyer is violation of the right under article 7(i). (1957) 9 DLR (SC) 20A.

 

Art.7(£).--Does not affect the validity of section 3, Punjab Safety Act (XVIII of 1949).

 

Abdul Aziz Vs. Prov. of West Pakistan (1959)11 DLR (SC)126 (1958) PLD (SC) 499.

 

Art,7(4) Detention.--An order of detention . cannot be extended beyond three months unless supported by the opinion of an Advisory Board appointed for the purpose.

 

"Person"-The words "a person" clearly denotes a particular person, namely, the person subject to the order of detention for a period exceeding three months and in regard to whose detention the requisite of a favourable report by the Advisory Board has been made sine qua non.

 

The Sub-article by implication, casts a duty upon the Chief Justice of a High Court to constitute an Advisory Board.

 

Abdul Aziz Vs. Prov. of West Pakistan (1959) 11 DLR (SC) 126. (1958) PLD (SC) 499.

 

Art. 7(5)--Sub-article (5) requires that the ground on which detention order has been made should be served on the person affected so as to enable him to make a representation against the order. It does not require that all the material facts should be embodied in the grounds. (1956) 8 DLR 700(712).

 

Art. 113-President's assent necessary to give validity to Provincial laws covered by the concurrent list. (1956) 8 DLR 526-547-48.

 

Art. 159. Acquittal—Appeal by the State to the Supreme Court--High Court's order of acquittal set aside and the accused convicted after re-valuation of evidence. Supreme Court will interfere when a charge of a crime was found to be clearly established by evidence of most patent reliability whereby an acquittal there has been a serious failure of justice.

 

Lalu Vs. State. (1960) 12 DLR (SC) 225 (1959) PLD (SC) 258.

 

--Supreme Court : interference byt with the decision of the High Court, when necessary, in a case of acquittal. If the decision of a question of fact arrived at by the High Court has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure.

 

in the reception of evidence or otherwise, in the trial of the matter, which is calculated to interfere with the due and safe dispensation of justice, interference by the Supreme Court will become necessary. Fateh Muhammad Vs. Bagoo.

(I960) 12 DLR (SC) 200

(1960) PLD (SC) 286.

Art. 160.--Appeal, , from order of acquittal, by a third person—Competence

of.

The right of the State to move the Supreme Court under Article 160 of the Constitution by way of appeal against an order of acquittal by the High Court admits of no doubt. It must not be understood that the Supreme Court has no jurisdiction to interfere with an order of acquittal by a High Court or any other Court otherwise than upon appeal by the State. There are circumstances in which such an appeal may be clearly competent e.g., where the prosecution was commenced and continued upon a private complaint.

 

The Supreme Court will not, in a proper case, hesitate to interfere where the circumstances indicate that there has been a grave miscarriage of justice, by some disregard of the forms of legal process, or by some violation of the principles of natural justice. It is quite conceivable that these conditions might be satisfied in a case in which the State might not choose to move the Supreme Court against an order of acquittal, and it is therefore of great importance that the Courts should not be understood to pronounce an absolute bar against notions of this kind.

 

Muhammad Ashiq Vs. Allah Baksh (1964) 16 DLR (SC) 55.

 

Art. 163(3)-"Doing complete justice in any cause or matter "--Supreme Court may suo\ motu enhance sentence for "doing complete justice inji case" where it is of the opinion that the punishment inflicted was much less than the enormity of the crime demanded.

 

Mir Khan Vs. State. (1960) 12 DLR (SC) 92   (1960) PLD (SC) 205.

 

Art.169.-"Misbehaviour" of a High Court Judge not dependent on proof of conviction.

The word "misbehaviour" is to be understood in its ordinary sense, viz., as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy .public confidence in him. Organising a criminal conspiracy, while being a Judge and abetting members of Bar to file false documents and make false declarations with a view to evading payment of income—tax-constitutes a misbehaviour.

 

High Court Judge acting as Chairman Election Petitions Tribunal-Misbehaviour as Chairman is misbehaviour in respect of office of Judge.

 

State Vs. Justice Akhlaque Hossain. (1960) 12 DLR (SC) 273 (1960) PLD (SC) 26.

 

Art. 170.-Remedy by way of writ even in cases where law provides machinery for redress can be availed of.

 

In this case it was contended before the Supreme Court that the Sea Customs Act provided right of appeal against order of the Collector to the Board of Revenue and further there is a provision to move the Central Govt. and therefore in the face of this provision writ petition to the Supreme Court did not lie. This contention was over-ruled by the Supreme Court as in the present case the question of jurisdiction was involved. Mis.

 

S. A. Haroon Vs. Collector of Customs. (1959)11 DLR (SC) 200 (1959) PLD (SC) 177.

 

--Read with Laws Continuance in Force Order, 1958. Position in regard to applications for writs if made after the promulgation of the Laws (Continuance) in Force Order, 1958 as well as in regard to application for writs which  are subjudice before the Supreme Court or require enforcement.

The position in regard to applications for writs made after the promulgation of Laws (Continuance) in Force Order, 1958, is that they lie only on the ground that one or more of Laws mentioned in Article 4 or any other right preserved by the Laws (Continuance) in Force Order has been contravened.

 

As regards pending applications for writs or writs already issued but which are either subjudice before the Supreme Court or require enforcement, the relevant provision embodied in clause 7 of Article 2 means that, excepting the writs issued by the Supreme Court after the promulgation of Martial Law and before the promulgation of the Laws (Continuance) in Force Order, no writ or order for a writ issued or made after the proclamation, shall have any legal effect unless the writ was issued on the ground that any one or more of the Laws mentioned in Art. 4 or any other right kept alive by the new Order had been contravened.

 

And if there be a pending application or proceeding in respect of a writ which is not covered by clause 4 of Art. 2, or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a Fundamental Right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ. The abatement must therefore be held to govern all these writs which are the subject matter of appeal before the Supreme Court either on certificate or by special leave.

 

State Vs. Dosso (1959) 11 DLR(SC) 1 (1958) PLD (SC) 533.

 

—Writ of certiorari when will issue: It has been often said that a court of jurisdiction may decide wrongly in law, and yet the superior court will not interfere with its decision. But the error of law contemplated is an error so patent, so manifest, that the superior court will not permit the subordinate court to come to decision in the face of a clear ignorance or disregard of a provision of law. If a section of a statute is clearly misconstrued, or if a provision of law is overlooked or not applied, and it appears from the judgment of the lower Court itself, then the superior court may interfere by a writ of certiorari.

 

State Vs. Dosso (1959) 11 DLR (SC) 1 (1958) PLD (SC) 533.

 

--Customs authority acting without jurisdiction-writ will issue. Samanulla Vs. State, (1959)11 DLR 307.

—Laws (Continuance) in Force Order, 1958 is supreme and when laws mentioned in Art. 4 of the Order are violated no writ can be issued for violation of Fundamental Rights mentioned in part II of the late Constitution since the constitution is abrogated. State Vs. Dosso, (1959) 11 DLR (SC) 1.

 

-Fundamental Rights enumerated in Part II of the Constitution do not derive their entire validity from that Constitution but they are rights which belong to every human being by birth. State Vs. Dosso, (1959) 11 DLR (SC) 1.

 

—Writ of Certiorari will not lie to set aside finding of facts, unless a conviction on the face of it is wrong.

The following proposition may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal ac,ts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principle of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not a^ lellate jurisdiction. One consequence of this is thai the Court will not review findings of fact \ reached by the inferior Court or Tribunal, even if  they be erroneous.

 

Santosh Kumar Vs. District Magistrate, (1960) 12 DLR 702 (1955) PLD (Dacca) 738.

 

-Writ of certiorari will issue when an error is discoverable on the face of the record, where misjoinder of charges in disregard of the provisions of sees. 233 and 234 CrJP.C. is patent, writ of certiorari by way of quashing the proceedings will issue.

 

Narayan Chandra Vs. R A. Khan. (1960) 12 DLR 342 (1958) 8 PLR 1140.

 

--Writ of certiorari was issued and conviction quashed when it was clear that the trial was held patently in violation of the provisions of sec. 234 of the Criminal Procedure Code.

 

Muzammil Ali Vs. A.F.M.A. Majid. (1960) 12 DLR 408 (1960) PLD (Dae.) 943.

 

-A writ of certiorari will issue to correct such errors of law as may be said to be errors apparent on the face of the record. It is not always easy to determine what are errors of law apparent on the face of the record and cannot be defined with any precision or even exhaustively, and there must always be an element of indefiniteness inherent in its very nature and each case will have to be determined on its own facts. Anwar Hussain

 

Talukdar Vs. Prov. of East Pakistan. (1960) 12 DLR 615 (1959) PLR 11 48.

(1958) PLD (Dacca).

 

—If there is some evidence to support conviction, that will not be an error apparent on the face of the record. Anwar Hussain Talukdar Vs. Prov. of East Pakistan. (1960) 12 DLR 615 (1959) PLR 11 48.

(1958) PLD (Dacca).

 

--But this does not mean that a certiorari will in no circumstances lie it the decision of the inferior Tribunal is based on no evidence at all.

 

Anwar Hussain Talukdar Vs. Prov. of East Pakistan. (1960) 12 DLR 615 (1959) PLR 11 48. (1958) PLD (Dacca).

 

-Non-compliance with rules of procedure, such as misjoinder of charges, will not amount to an illegal exercise of jurisdiction. No certiorari will lie. Anwar Husain Talukdar Vs. Prov. of East Pakistan.

(1960) 12 DLR 615 (1959) PLR 11 48. (1958) PLD (Dacca).

 

--Where a contention is made that a misjoinder of charges is an error apparent on the face of the record the onus would be on the petitioner seeking to establish the misjoinder to do so without any elaborate argument on the wording of the accusations themselves.

 

Anwar Husain Talukdar Vs. Prov. of East Pakistan. (1960) 12 DLR 615 - (1959) PLR 11 48. (1958 )PLD (Dacca).

 

-The error of law which can be considered to be apparent on the face of the record is not an error which can be pointed out to the superior Court after a long and elaborate argument. Anwar Hussain Talukdar Vs. Prov. of East Pakistan (1960) 12 DLR 615=(1959)PLR 11 48; 1958 PLD (Dacca).

 

—No law or regulation gives complainant a vested right, enforceable by writ to have his complaint investigated by a particular branch of police.

 

Federation of Pakistan Vs. Shah Md. Khan (1960) 12 DLR (SC) 222 (1960) PLD (SC) 85.

 

-Wrii-isued-conviction set aside and the case directed to be retried, when the case which should have been tried by warrant procedure was tried by following summons procedure.

 

Rith Koran Vs. M. Zaman. (1959)11 DLR 448 (1960) PLR 129.

 

—Will lie to quash conviction which being based on hearsay evidence is no evidence at all.

 

Bharat Tewari Vs. Special Magistrate. (1958) 10 DLR 481 (1959) PLR 276.

 

—Issued when the order of conviction by a Special  Magistrate  was  without jurisdiction. flk

 

Sekandar Hussain Vs. Special Magistrate, (I960) 12 DLR 155.

 

—Conviction based on no evidence can be quashed by a writ of certiorari. Subal Chandra Vs. M.SJluq. (1960) 12 DLR 220.

 

-Will issue if the misjoinder will appear patent on the face of the record.

 

Abdul Quddus Vs. M.S. Khan. (1961) 13 DLR 213,

 

—Writ of certiorari will lie on the ground that the provisions of the law in convicting a person were not followed.

 

Faker All Vs. State. (1959) 11 DLR (SC) 196 (1959) PLD(SC) 291.

—Will lie against illegal order of confiscation made under sec. 6 of the E.P. Control of Essential Commodities Act.

 

Faker All Vs. State. (1959) 11 DLR (SC) 196 (1959) PLD(SC) 291.

 

—Plea that there was an alternative remedy by way of appeal not having been raised in High Court, cannot be entertained in the Supreme Court.

 

Pakistan Vs. Qazi Zainuddin (1962) 14 DLR (SC) 244

(1962) PLD (SC) 440.

 

-High Court can issue appropriate writs and can hear arguments and pass" appropriate orders on the question of jurisdiction of Military Courts.

 

Chowdhury Manzoor Elahi Vs. State. (1959) 11 DLR (WP) 111. (1959) PLD (Lahore) 243.

 

-Writ of certiorari Circumstances where writs-lie-Certiorari will not generally lie where there are adequate remedy available-But in a proper case where the question of jurisdiction is raised writ of certiorari may be successfully invoked. Mis. S.A. Haroon Vs. Collector of Customs (1959) 11 DLR (SC) 200. -Jurisdiction conferred upon the High Courts by Article 170 is wider than the jurisdiction enjoyed by the Courts of England.

 

The Ordinance XII of 1956 bars all remedy against an order of conviction and sentence passed by a Special Magistrate. The High Court in such circumstances has ample power to investigate the legality of the conviction and the sentence. (1956) 8 DLR 526 (538-39)

 

—Art. 170--An order of conviction and sentence by a judgment of a Special Magistrate under Ordinance No. XV of 1956 [East Pakistan Food (Special Courts) Ordinance] notopen to appeal or revision but a writ of certiorari will issue when conviction and sentence are illegal.

 

Rajab AliBepari Vs. Prov. ofE. PakJ(79>$e}10DLR385.

1848

CONSTITUTION OF PAKISTAN, 1962.

Citation: (1988) 40 DLR (AD) 178, (1986)38 DLR (AD)188, (1983) 40 DLR 183.

Subject: CONSTITUTION OF PAKISTAN

Delivery Date: 2018-10-02

CONSTITUTION  OF  PAKISTAN,  1962.

 

Article 98 read with Constitution of Bangladesh, 1972 Article 102—Since 1962 prerogative writs were omitted and the constitutional jurisdiction to issue necessary orders on an application was conferred on the High Court/ (Division) in its own terms. Radical difference in language between Article 170 of 1956 Pakistan Constitution and Article 98 of 1962 Pakistan Constitution in respect of the jurisdiction conferred on the High Courts. Sajeda Parvin Vs. Govt. of Bangladesh.   (1988) 40 DLR (AD) 178.

 

Article 98(2)(b)—Read with Constitution of Bangladesh, 1972 Article 102(2)(b)(i)—The language of Article 98 of 1962 Pakistan Constitution which has been imported into Article 102 of Bangladesh Constitution of 1972 has been couched in such a manner which is untrammelled by the formalities or technicalities of cither section 491 of the Code of Criminal Procedure or the old prerogative writ of Habeas Corpus. [Ref: 21 DLR SC 1(11). Sajeda Parvin Vs. Govt. of Bangladesh. (1988)40 DLR (AD) 178.

 

Contempt of Court—Maintenance of the Court, dignified bearing in the face of unbecoming conduct, etc. Abdul Karim Sarker Vs. The State (1986)38 DLR (AD)188.

 

—Contempt of Court—When apology offered is unacceptable. Abdul Karim Sarker Vs. The Stale (1986) 38 DLR (AD) 188.

 

—Acceptance of an apology tendered not at the earliest opportunity showing sincere regret, would amount to opening and not closing the door of scandalizing the Courts. Abdul Karim Sarker Vs. The Slate (1986) 38 DLR (AD) 188.

 

"Show cause" notice issued to the contemners asking them why they shall not be convicted and punished for contempt of court for writing, editing, printing and publishing a letter to the Editor captioncd" 'W*Mc(W CW' in the issue of the daily Inquilab at page 5 of the 12th June, 1986 containing scandalous allegations against the Judges as a class and the Bench officers of the Judges as a class, thus undermining the dignity and authority of the Courts of law in Bangladesh and lowering the reputation of the entire judicial system in the estimation of the public. The letter writer namely, M.A. Monir, Con tern ner No. 1 was a nondescript person venturing into the field of administration of justice—Contemner Nos. 2-4 offered unconditional apology to the Court which was considered adequate but were warned to be very careful in printing such offending materials written by ill-equipped, unqualified and nondescript people to interfere in matters which are not subject-matter of their concern—Contemncr No*-1 is convicted. Stale Vs. MA. Monir (1983) 40 DLR 183.

 

1849

Constitution of Pakistan, 1962 -1

Citation: (1963) 15 DLR 533, (1962) 14 DLR (SC) 273 (1962) PLD(SC) 476, (1959)11 DLR(WP) 36 (1958) PLD(Lah.) 1042, (1983) 35 DLR (AD) 203, (1986) 38 DLR (AD) 188, (1983) 35 DLR (AD) 203, (1982) 34 DLR 113, (1982) 34 DLR 23, (1977) 29 DLR 20, (1963) 15 DLR (SC) 15

Subject: Constitution

Delivery Date: 2018-08-28

2.    Disobedience    of   orders or   processes    of   Court.

 

-Injunction order of the Court, disobedience of person not party to the proceeding in which the injunction order was passed, not guilty of contempt of Court, unless he aids or abets in the infringement of the order.

An injunction order (in the present case) was passed by the High Court restraining the opposite parties to the proceedings from interfering with the petitioners' possession of the cattle market (the subject-matter of the proceeding) till the disposal of the matter by the Court.

 

Opposite party No. 4 was not party impleaded in the proceeding but he was aware of the Court's order and in spite of that collected tolls from the disputed cattle market with full knowledge of the Court's order staying further proceedings. Question arose, whether a person who was not a party to the Courts proceedings and the injunction rule can be committed for contempt of Court for disobeying the order of injunction.

 

Held: Inasmuch as the opposite party No. 4 was not bound by the injunction he cannot be held liable for contempt, on the principles laid down by the Privy Council in the Kuchwar Line & Stone Go's case (AER 1938 P.C. 295). Unless a person aids or abets another person bound by the Court's injunction order, in disobeying the order of injunction, the contempt proceeding against such person will not lie. In the present case so far as the person bound by the Court's injunction order were concerned, none of them disobeyed the order and the question of abetting the infringement of the order did not, therefore, arise.

 

Aftabuddin Barker Vs. Qazi Azhar All (1963) 15 DLR 533.

 

-Failure to obey the process of Court does not amount to contempt unless something more as contumacious disregard of the Court's order is established-Circumspection to be observed when taking contempt proceedings. In the absence of any proof of a contumacious disregard of an order of the Court no committal for contempt is possible. Respect due to a Court itself is owed also to its processes but mere failure to obey any process of the Court, when other methods of enforcing the process are available, does not amount to a contempt of Court. Unless the person served with the process has done something more to exhibit a disrespect for the process of the Court, as for example, used insolent or indecent expressions or violent or profane language on being served with such a process or assaulted, or ill treated the process server.

 

It is of the utmost importance that a committal for contempt should not be made unless the disobedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out to flout the order of the Court and to treat with some degree of contumaciousness. Bahawal Vs. State .

(1962) 14 DLR (SC) 273 (1962) PLD(SC) 476.

-If a person disobeying High Court's order delivers property not ordered to be delivered in collusion with persons to whom property was delivered that amounts to a contempt. Nizam Din Vs. Muhammad Bux

(1959)11 DLR(WP) 36 (1958) PLD(Lah.) 1042.

 

-Facts which constituted contempt in the present case-Court's order is found to have been disregarded.

 

Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.

 

-Executive arm of the Government will not be allowed to attack and deface the honour.dignity, majesty and independence of the judicial organ of the State.

 

Adbul Karim Sarkar Vs. The Stale (1986) 38 DLR (AD) 188.

 

-Contempt of Court-Maintenance of the Court, dignified bearing in the face of unbecoming conduct, etc. Abdul Karim Sarkar Vs. The Slate (1986) 38 DLR (AD) 188.

 

Violation of the order is found to be deliberate and intentional. But in the facts and circumstances in the present case violation of the order is found .to be deliberate and intentional. It is not a single act or omission for which the respondent has been charged. There is a series of acts of the respondent from 21.7.82 to 31.12.82. i.e. for about six months, which are involved in the allegation of contempt. It is not the case of the respondent that he misunderstood our order or there is ambiguity therein, particularly about certificated bills as a precondition for preparation of cheques to withdraw money. Rather, he himself stated in his reply to the petitioner's suggestion for a discussion that the Court's order was very clear and unambiguous which could be followed without any difficulty and that it is the petitioner who tried to complicate the matter.

 

Mahbubur Rahman Vs. Majibur Rahman (1983) 35 DLR (AD) 203.

 

—Resident Magistrate and Sub-Divisional Officer found guilty of contempt of court and sentenced to imprisonment till the rising of court and to pay a fine of Taka 300.00 each.

 

We find no 'difficulty in holding that both the respondents deliberately violated the order passed by the High Court Division on 8.11.78 stay ing'all further proceedings of Sherpur P.S. Case No. 14 dated 26.10.78 and as such both 'of them are guilty of committing contempt of this Court. Surendra Mohan Shaha Vs. Government of Bangladesh (1982) 34 DLR HO.

 

--Sub-divisional Officer found guilty of contempt of court by the High Court Division-­Sentence awarded is imprisonment till the rising of the court.

 

Momtazuddin Ahmed Vs. Abdur Rashid Khan (1982) 34 DLR 113.

 

Contempt of court—disobeying court's order-Application of law embodied in the Penal Code as sn appropriate punishment. A proper and judicious application of those penal clauses would have some deterrent and beneficial impact upon the public servant who chooses to disobey the orders -of the Court or the law.

 

Punishment under the Contempt of Courts Act, is not, so far as the present delinquent is concerned, stringent or deterrent enough for such glaring cases of wilful disobedience by a public servant.

 

Southern Fisheries Ranong Corps. Vs. Kingfisheries Ind. Ltd. (1982) 34 DLR 23.

 

-Public servants like any other citizen are not only duty bound to obey the law and the orders of the Court but it is their constitutional obligation to do so, inasmuch as the Constitution enjoins upon all authorities, executive and judicial in the Republic, to act in aid of the Supreme Court.

 

Southern Fisheries Ranong Corps. Vs. Kingfisheries Ind. Ltd. (1982) 34 DLR 23.

 

-Superior Courts order should be duly respected by all concerned. Sk. Abdul Bari Vs. Abdus Samad Bhuiya (1977) 29 DLR 20.

 

3 .    Interferencewith administration   of   justice-Pending    Proceedings.

--Conduct that tends to bring the administration of law by a Court into disrespect amounts to a contempt.

The categories of contempt are too manifold that it is not possible to attempt an exhaustive classification of what may or may not constitute a contempt, but generally speaking any conduct that tends to bring the administration of law by a Court into disrespect or to contumaciously disregard its processes or to interfere with or prejudice parties or their witness during the litigation amounts to a contempt.

 

Md. Samirullah Khan Vs. State, (1963) 15 DLR (SC) 150.

 

—Test applicable to ascertain—is whether a publication has interfered with .the course of justice. Held: The real test in cases of this nature is whether the publication complained of tended or was calculated to interfere with the course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard. In determining this effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of, is of any consequence, for, what a Court of law is concerned with is that it should not permit anyone to poison the fountain of justice before it begins to flow.

 

Attorney-General of Pakistan Vs. Abdul Hamid Sheik, (1963) 15 DLR (SC) 96.

 

--It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof but that it is sufficient that they should be calculated to have thateffect.

-. 'Calculated' means that the offending words should be of a nature or character proper orilikely to obstruct or interfere in that matter.

 

--The words that during the Muslim League' the judiciary had been influenced by the Ministry amount to gross contempt of Court.

 

State Vs. A. Rashid, (1958) 10 DLR 568 (1959) PLR 716.

 

—Anticipating the judgment of a Court that had been reserved is a serious matter even though the ultimate order of Court passed by the Judge in a particular case is to the same effect as was anticipated inasmuch as the ultimate order could have been otherwise, as the Judges were at liberty to change their opinion till the delivery of the judgment regardless of the observations made by them during the hearing.

 

Abdus Salam Vs. State, (1958) 10 DLR (SC) 176 (1958) PLD (SC) 528.

 

-It was within the rights of the Munsif, if he did not agree with the trying Magistrate for any departmental action against the process-server, to record his own comments on the findings of the Magistrate, in his report to the District Judge. If he did not agree with the trying Magistrate, he could offer his own comments and his opinion on the findings. Although the remarks were strong they were made by the Munsif in the discharge of his duty as a Sub-Divisional Munsif and, as such, it could not be held to impede the due course of administration of justice and determine the public confidence in the administration of law.

 

Crown Vs. S.C. Royl(19tW7 DLR 399.

 

-Any conduct which tends to bring authority of law into disrespect or disregard or to interfere with or prejudice parties, etc., constitutes contempt of Court. (1949) I PLD (Lah.) 392.

 

-Court should not take cognizance at instance of private party unless that party satisfies the Court that matter published tended substantially to interfere with due course of justice. (1953) 5 PLD (Lahore) 579.

 

-Establishing truth of allegations made against a Judge is no defence to a charge of contempt of Court. A libellous statement which amounts to interference with Courts of justice amounts to contempt even though the defendant is prepared to justify the libel. Crown Vs. Abdur Rahman 2 PCR 64.

(Per Kaikaus, J.)—Superior Court should be absolutely protected from attack.

 

M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

--Contempt of Court for breach of Court's prohibitory order—Knowledge of such order —Wilful disregard to the order will outweigh proof of actual service of the order.

For justifying a committal for breach of a prohibitory order it is not necessary to actually prove service of the order upon the party. But the contention cannot be accepted that any kind of report of such an order will be sufficient to fix the party with notice of such an order. In a proceeding of a criminal or quasicriminal nature it is a fundamental rule that before a person can be saddled with the penal consequences of a breach of an order he must at least be shown to have had some definite and authentic information of the order which he is alleged to have violated. What amount of proof will be sufficient to fix a person with such knowledge will of course depend on the facts and circumstances of each case but this can safely be stated that the mere verbal assertion of a rival party can hardly be regarded as sufficient for this purpose. When there is clear proof of a wilful disregard of the order proof of actual service of the order is not necessary to assert the claim of knowledge of the person saddled with the yenal consequences. Syed Ahmad Shah Vs. The, State. (1967) 19 DLR (SC) 103.

 

-Functions of the decentralised administration at the thana level-surveyed.                    

Munsifs and Magistrate working in the new Upa-zilas functions independently of Upa-zila Nirbahi Officers. Telling the Munsif-Magistrate in open court (by U.N.O.) is gross interference with the administration of justice and constitutes clear contempt of court.

 

The State Vs. Abdul Karim Sarkar(1985)37DLR26.

 

-The confidence in Courts of justice which the public possess must in no way be tarnished, diminished or be wiped out by contumacious behaviour of any person. The essence of contempt is an action or inaction amounting to an interference with or to obstruct due administration of justice.

 

Uoaizem Hossain Vs. Stale (1983) 35 DLR (AD) 290.

 

4.    Jurisdiction.

 

Power of committal given to superior Court--a necessary power given. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority. It is necessary to arm the Courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in their capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of Courts. Edward Snelson Vs. Judges II. C. of Lah. (1964) 16 DLR (SC) 535.

 

--What constitutes contempt of Court-dictum of Wills, /.-It is now-settled that all publications which are calculated to or have the tendency either to excite prejudice against parties or their litigations while it is pending or to interfere with the due course of justice, will constitute contempt. The reason for this as stated by Wills. J. in the King Vs. Parke (1903-2KB 432, "is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists, namely, to administer justice duly, impartially, and with reference solely to the facts judicially before him."

 

Advocate-General Vs. Sabir Ahmed (1963) 15 DLR (SC) 355.

 

-High Court's power to punish an Advocate under the Letters Patent for contempt of the Court does not extend to cases where such contempt is committed before the Federal Court. (1953) 5 DLR (FC) 216 (226).

-Jurisdiction of the High Court to deal with contempt committed before the Federal Court. There is no warrant for the view either in authority or in well-recognised principles that the High Court cannot take action against an Advocate in respect of something done or intended to be done before the Federal Court which brings the High Court into contempt. In the matter of 5. M. Hoq, 5 DLR(WPC) 88 (94).

 

[This judgment has been over-ruled by the Federal Court decision reported in 5 DLR (FC) 216]

 

Contempt proceedings, nature of Contempt proceedings are in the exercise of criminal jurisdiction in a broad sense and consequently no appeal would lie under Clause 10, Letters Patent (Lahore) [same as Clause 15, Letters Patent, (Calcutta)]. (7956) 8 DLR (WPC) 39.

 

—Punishment for contempt of Courts falls within the inherent jurisdiction of the Court and no appeal lies against such order of punishment. (1956) 8 DLR (WPC) Karachi 50.

 

—Committed by Advocate in India of an Indian Court-Advocate on the rolls also of Lahore High Court in Pakistan.= Only the Lahore High Court was competent to take disciplinary proceedings against the lawyer concerned. 5 PLD (Lahore) 244 (245)

 

5 .    Lawyer

 

Advocate on charge of contempt. Although proceedings in chambers of Judges are not invested with the full formality of those that take place in Courts, yet the circumstance in which and the attitude with which an interruption was made by the Advocate in the case even in chamber proceedings are factors which may deprive the interruption of all innocence in the light of contempt of the Court's authority and dignity.

An offence in this respect shall necessarily invite the grave penalty of judicial conviction and a fine supported by imprisonment in default but in the present case having regard to the fact that the Advocate concerned was young the conviction and sentence was set aside and in their place an admonition substituted to the effect that in all his future dealing with Court, he should never forget that however important in substances or principle a matter may be, which he is placing before the Court, he should never forget that his own dignity as a lawyer obliges him to place it before the Court in the manner of a submission, couched in the traditional language of courtesy that is due to the Court.

Rashid Murtaza Qureshi Vs. State (1965) 17 DLR (SQ608

 

Duty of the members of the Bar towards the Courts. Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against Judges or the opposite parties on the mere wish of their clients. They are not puppets compelled to obey the dictates of their clients where matters of good faith and colourable conduct are concerned. They are responsible to the Court for fair and honest conduct of a case. Lawyers should exercise great care and caution in drafting and pleading in Court an application which contains allegations reflecting upon the integrity of the Court. State Vs. A.Gafur Bhuiya (1961) 13 DLR 851.

 

-Advocate acting as Official Receiver writing to Government to influence the High Court in regard to his functions as Receiver is in serious contempt.

 

S. A. Maquith Chowdhury Vs. State (1959) 11 DLR (SC) 105

(1958) PLD (SC) 425.

 

—Advocate's duty-An Advocate should act with regard to the responsibility of high office and must not use instruction which are derogatory and which could be verified.

Md. Ayub Khan Vs. Custodian of Evacuee Property (1963) 15 DLR (WP) 93.

 

Duty of members of the Bar towards the Courts.

-Members of the Bar should remember that their primary duty is to the Bench and then to their clients and even if they have instruction from the clients tending to cast reflection on the Presiding Officer, they should be very careful not to put those statements in any petition.

 

State Vs. Delwer Hossain (1960) 12 DLR 613 (1961) PLD 157.

 

—Applications or pleadings containing scandalous matters—Lawyers intentionally and deliberately Scandalizing the Court-sentence of punishment—party guilty of gross contempt of Court-lawyers duty to uphold Court's prestige and not to lower it. (Per C.J.)

 

State Vs. Noman (1964) 16 DLR 393.

-Advocates enjoy absolute privilege on the general principles dictated by public policy that they should be allowed full liberty, without fear of any civil or penal action in pressing and pursuing the cause of their clients before Courts and Tribunals.

 

Advocate qua Advocate cannot claim any special privilege-Judges protected, Advocate's privilege cannot go to the extent of scandalising Courts-such defence is unavailable.

 

State Vs. Noman (1964) 16 DLR 393.

-No privilege of any kind can be claimed by Advocates in proceedings for contempt of Court even if the acts claimed of were done by them with reference to and in the course of, enquiry before a judicial tribunal. This view is all the more fortified by Article 123 of the Constitution which confers on the Supreme Court the power to punish any person for contempt of Court. Judges are protected from civil or criminal process if they, in the discharge of their judicial duty, act in good faith. As Advocates are officers of the Court they are not entitled to a provision greater than the protection available to Judges. Professional Privilege is conceded to Advocate only on the ground of public policy, so that they may pursue their client's cause without any fear of penalty.

 

Advocates in the discharges of their duty, must act in good faith as is required by the 9th Exception to section 499 of the Penal Code and must not say or do anything which might cause harm to the Court itself as an institution.

 

State Vs. Noman (1964) 16 DLR 393.

 

Plea of privilege by a lawyer.

 

-It was argued that if a plea of privilege is available in a civil action for libel, it should not be denied in a case of contempt of Court. - Held: (Satter, J.) There is a fundamental difference between the two proceedings and the • difference is based on consideration of public policy. To allow such a defence would amount to cutting at the roots of dignity and authority of the Courts of Justice. Such a plea must be rejected, not to protect an erring Judge but ninety nine others who would be victims of prosecution at the instance of disgruntled persons, though there can be no honest complaint against them. This is also necessary to preserve the awe, authority and position of the judiciary. An act which strikes at the root of public confidence in Court of law destroys the very fountain of justice and this accounts for the extraordinary power of punishing contempt of Court summarily and also by persons who are themselves the prosecutors.

 

Stale Vs. Noman (1964) 16 DLR 393.

 

-Counsel's difficult task in presenting his client's case before the Federal Court in exposing errors of the High Court-Accentuation of the difficulty to be avoided in the interest of justice-words, however strong, can be used if thereby to advance cause of justice-words to belittle the judge qua judge to be avoided provided the criticism is advanced with the single purpose of aiding in the due dispensation of justice-no words employed can be too strong, if, in choosing them, it is also borne in mind that so far as possible, no words should be used gratuitously to bring into disrepute or belittle the judges or the Court whose work is being criticised. (1953) 5 DLR (FC) 216 (226).

 

-Jurisdiction of the Federal Court is exclusive to decide, in respect of a counsel's acts performed before it, whether it has been guilty of contempt of the High Court on defaming it.

 

S. M. Huq Vs. Hon' ble Judges of the High Court (1953) 5 DLR (FQ216.

 

[This overrules the dictum of the Lahore High Court in the case reported in 5 DLR (WPC) 88 (94) that the High Court is competent to take action against an Advocate in respect of something done before the Federal Court, which brings the High Court into contempt.]

 

—In case of genuine apprehension, it is the primary function of the litigant and the lawyer, to openly state it.

 

M. H. KhondakecrVs. Slate (1966) 18 DLR (SC) 124. -

Duty of the lawyers engaged to conduct the case in weighing carefully any statement made to the Court which may scandalise the Court. M. H.

Khondakar Vs. Stale (1966) 18 DLR (SC) 124.

 

-Mutual responsibility between the Bench and the Bar to ensure even flow of justice never to be forgotten.

The Bar and the Bench are complementary to each other. Any propensity by any one side to carry its temporary ruffled feelings against the other to an unreasonable length destroys the moral foundation of both the two institutions. In the most disrespectful and contemptuous words possible the contemncr Advocate has poured scorn on the learned Additional Sessions Judge blurting out defamatory and scandalous allegations against the court and thwarting the administration of justice itself, but decency and good sense required the contemner Advocate to rush to the learned Additional Sessions Judge himself at the earliest possible opportunity to express his regret and remorse over his utterances and to hold out a solemn promise to him that he would in future never behave in the same manner,

 

Slate Vs.Nazrul Islam (1985) 37 DLR 200.

 

-Lawyers responsibility who are an integral part of the court to uphold the dignity and prestige of the court. It is of utmost importance for all concerned to remember that judiciary is upholder and preserver of the liberties and rights of the people and nothing should be said or done to lower the judiciary in the estimation of the people or to obstruct the administration of justice: more so by the Lawyers, who are the integral part of the Court and it is their dilty to uphold the dignity and prestige of the Court and not to lower it.

 

State Vs. Abdul Majid (1981) 33 DLR 220.

 

—Bar's responsibility in the matter upholding the dignity of the Court, not of individual Judges who constitute the court.

Professional misconduct amounting to contempt of court-Members of the Profession's responsibility.

Absence from the Court in disregard of the Court order and for false statement regarding illness and for sending letter direct to the court through the Deputy Registrar.

 

The State Vs. Moazzcm Ilossain (1983) 35 DLR 266.

 

6.Subjudice-    pending proceedings.

 

 -Pending proceedings before (Supreme) Court—Expression of opinion over a law point in respect of such proceedings and the plea of ignorance. It is not possible to accept contention that mere expression of an opinion on question of iaw which is subjudice cannot amount to a contempt of Court. It is not possible to accept the contention that in law knowledge of the pendency of the proceedings is necessary. All that is necessary to show is that a proceeding was actually pending at the time or was imminent.

 

Advocate General Vs. Shabir Ahmed (1963) 15 DLR (SC) 335.

 

-Pending also includes and extends upto the period of limitation for filing appeal, etc. There is abundant authority for saying that a case is pending upto the time that the limitation for filing an appeal from the said cause has not expired.

 

Advocate General Vs. Shabir Ahmed (1963) 15 DLR (SC) 355.

 

7.    Misrepresentation   of judgment.

-Anticipating the judgment of a Court that had been reserved is a serious matter even though the ultimate order of Court passed by the Judge in a particular case is to the same effect as was anticipated inasmuch as the ultimate order could have been otherwise, as the Judges were at liberty to change their opinions till the delivery of the judgement regardless of the observations made by them during the hearing (26 E.R. 683 followed)

 

Abdus Salam Vs. State (1958) 10 DLR (SC) 176=(1958) PLD(SC) 528.

 

-Misrepresentation of proceedings of the Court or even anticipation of the order which the Court might make is a species of contempt.

 

State Vs. Editor, Pakistan Observer (1958) 10 DLR 255.

 

-A litigant has every right in circumstances which shakes his confidence about getting justice at the hand of a superior Court to raise his objection.

 

M. II. Khondakar Vs. State (1966) 18 DLR (SC)

124.

 

8.      Newspaper   comment.

 

—Newspaper comments, when have the effect of interference with the course of justice. If an article read reasonably and as a whole was calculated or had the tendency to prejudice mankind against one or other of the parties involved in a proceedings in a Court of law, will amount to an interference with the course of justice, for, the question in these cases is not as to whether the publication has, in fact interfered or not or as to what was the intention of the author and /or publisher, but whether it has the tendency to produce such prejudicial effect. The principle upon which this type of contempt is punished is to keep the streams of justice unsullied so that parties against whom litigations are pending in Court of law should get fair trial from the Court and not be subjected in advance by a "trial by newspapers".

 

Saadat Khialy Vs. State & ors. (1963) 15 DLR (SC) 81.

 

-Editors' responsibility-It is of no avail to the editor of a newspaper to plead ignorance of the publication for, in law he is responsible for every thing that is printed in his newspaper.

 

Advocate General Vs. S. Ahmed (1963) 15 DLR (SC) 355.

 

-It is a misconception to think that publications of briefs, pleadings or petitions even without comments can, in no circumstances, amount to a contempt. Such publications, if one­sided, may well have the undesirable effect of prejudging the party whose version is not also placed before the public.

 

Saadal Khialy Vs. State (1963) 15 DLR (SC) 81.

 

--In the case of newspapers, the editor, the manager, the printer, the publisher as also the staff reporter, who is the actual author, are legally responsible in the fullest measures for the publication made therein. It was clearly the duty of editors and the publishers to see that whatever is published in their newspaper is a true and authentic report of proceedings in a Court of law. It is incumbent on the editor, publisher and printer of the newspapers to verify the correctness before they publish and print news about any Court proceedings and that they should be very careful before publishing any such things and should guard its security. Saddat Khialy Vs. State (1963) 15 DLR (SC) 81.

 

-Newspapers publishing the contents of an application filed in the Supreme Court (containing sensational matters) even before the application was taken up for hearing are guilty of contempt.

 

Attorney General Vs. A Hamid (1963) 15 DLR (SC) 96.

 

—The effect of the publication complained of in the present case was to cause a grave and serious interference with administration of justice, for the allegations made in the petitions of Shabir Ahmed, J., as published in the newspapers clearly calculated to lead to the inference that the Judges constituting the Special Bench hearing the appeal has not decided the case of Syed Ali Newaz Gardezi with fairness and impartiality.

 

Attorney General Vs. A. Hamid (1963) 15 DLR (SC) 96.

 

-Both parties to a cause in a matter pending in a Court of law, should be heard at the same time and in the presence of each other by an unprejudiced tribunal. This object will be entirely frustrated if newspapers are permitted to print extracts of pleadings in advance, for, it would constitute a serious interference with what is Court's duty, the decision of the pending case.

 

Attorney General Vs. A. Hamid (1963.) 15 DLR (SC) 96.

 

-Reporter of newspaper taking down the speech of the contemner not an accomplice. A reporter of a newspaper who took down the speech of contemner which is the subject-matter of the contempt proceeding and which the contemner contended was not correct report of speech is not in the position of an accomplice and a Court cannot refuse to accept his evidence on the plea that it cannot do so unless it is corroborated in material particulars by independent evidence. State Vs. Abdur Rashid (1958)'10 DLR 568

(1959) 9 PLR 716.

 

--Editors and printers-^role of want of care. Editor, Manager, Printer and Publisher of a newspaper must accept the fullest responsibility for every thing that is,published. State Vs. Abdur Rashid (1958) 10 DLR 568 (1959) 9 PLR 716.

 

--Intention to cause prejudice not a necessary ingredient--If a publication is calculated, that is, is of nature of character as is likely to lead to that effect, that would be contempt. The word 'calculated' has two meanings. One is 'devised with forethought' and the other is 'of a nature of character proper or likely to'. The word 'calculated' used by the Privy Council in the case of Devi Prasad Vs. Emperor in the sentence calculated to obstruct or interfere with the course of justice and the due administration of the law had been used in the latter sense. Abdus Salam Vs. State (1958) 10 DLR (SC) 176 (1958) PLD (SC)528.

 

-Article in a newspaper criticising judgments of a High Court Judge and describing him as time-server and his decision as expedient in the existing circumstances-Article inciting people to turn the Judge out of Pakistan-amounts to contempt of Court. 1 PLD (Lahore) 410.

 

-Reference in newspaper head-line to grounds in revision petition that the act of Magistrate was against law-no contempt. 5 PLD (B.J.) 79.

 

-Unnecessary use of words in newspaper report of Court proceedings tending to show that the Court's order in favour of a party was in consideration of such party being an officer-bearer of a political organisation may amount to contempt object, motive or intention with which such words were used, not material in an action for conlempt. 5 PLD (BJ) 79.

 

-The press as a rule have no right to make the correctness of a decision of a subordinate judicial officer a public issue by imputing motives to the officer concerned. The course for the Press where they have reasons to believe that a dishonest judgment has been delivered is to approach the appropriate authority and ask for a regular inquiry against the officer concerned. Crown Vs. Editor of the Zaminder. 2 Pak. Cr. Reporter 37.

 

Scandalisation of the Judges by News Editor.

 

—The News Editor sought justification for printing matters scandalising the judges on the ground that he had to do it upon positive instruction of his superior-in-office. Held: A subordinate officer is not bound as a part of his duty to carry out the illegal orders of his superiors and he cannot escape liability on that score. The Slate Vs.Ezaz Mahmood (1971) 23 DLR (Lah)41.

 

-Attempt to justify publication scandalising the judges constitutes worst contempt and the contemner not permitted to offer evidence in justification of his allegation.

                             ,

-Scandalization of the Judges-Such offence has to be met with condign punishment-Mitigating circumstances when the offender without any defence throws himself at the mercy of the Court in contrition of the offence committed. In the matter of Contempt Proceedings against Arif Nizami, (1971) 23 DLR(SC) 1.

 

—Any publication in newspapers which is calculated or has the tendency to prejudice the public

mind in favour of or against a party to a cause is a contempt of court. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.

 

9 .    Procedure

 

—In contempt proceedings a Court of law would insist on an equal amount of strictness of proof and would act with as much prudence in assessing the evidence adduced as a Court of justice should exercise in all matters before it. It must however be observed that in contempt proceedings the Court is not bound by any technical considerations (21) CWN 1161 rel. Stale Vs. Abdur Rashid (1958) 10 DLR 568

(1959) 9 PLD 716.

 

-For reasons of client's misgiving about a case to be heard by a particular Bench, it is sent to another Bench. If the client had at all any misgiving about the hearing of this matter by this particular Bench they should have simply mentioned it before the Court in which event the then pending cases of their clients would have been sent to some other Bench in accordance with the usual practice obtaining in this Court.

 

State Vs. M. Noman (1964) 16 DLR 393.

 

—High Court can hear contempt matter committed of itself before Supreme Court. It was argued that the leave petitions haying been presented in the Supreme Court, that Court alone, to the exclusion of the High Court, has jurisdiction to take notice of the contents of the said petitions and deal with them in such manner as it thinks fit. Held: The High Court has jurisdiction although these were issued on the basis on the allegations made in the leave petitions filed in the Supreme Court. State Vs. M. Noman (1964) 16 DLR 393. [(1953)5 DLR (WPC) 88. This decision has been over-ruled in 5 DLR (FC) 216.]

 

--The Privy Council has not laid down that contempt proceedings are for all purposes criminal proceedings (40 CWN 802 (PS) explained)

 

State Vs. Abdul Rashid (1958) 10 DLR 568.

 

- Proceedings for contempt of Court should not be lightly started. M. 0. Ghani Vs. A.N.M. Mahmood (1966)18 DLR(SC) 463.

 

-If the High Court's order staying a proceeding pending before a subordinate Court affects another proceeding being an offshoot of the earlier proceeding, disposal of the subsequent proceeding will amount to contempt even though earlier proceeding was stayed in obedience to the High Court's order. Tangail Cotton Mills Ltd. Vs. Mr. Amanullah Khan (1977) 29 DLR 138.

 

--Contempt of Court may be in relation to matters pending in a court of law as also matters "about to be taken to Court" as well as matters which are not taken to court including even those which have been already decided. M. A. Awal Vs. Ehtesham Hyder [1976) 28 DLR 285.

 

10.   Scandalizing    Court.

 

--Scandalising remarks about the manner of disposal of some cases in the past. Where the printed or published or uttered matters amount to a scandalization of the Court with reference to a decided case or cases, it amounts to a clear contempt of Court. State Vs. Abdul Rashid (1958) 10 DLR 568J1959) 9 PLR 716.

 

--The contemner addressed a letter to the Judicial Secretary of the Provincial Government requesting him to move the authority to abolish the system of chamber examinations which are held in the High Court of Dacca by the Judges for the purpose of selecting advocates for enrolment and in that letter he used the following language :- "that the system as I understand is open to discrimination and is otherwise not conducive to the healthy growth of legal genious." Held: The language used did tend to scandalize the Court and to interfere with due administration of justice by the Court and, as such amounted to contempt of Court. There can be no doubt that when examining prospective Advocates in chambers with a view to their enrolments as practitioners in the Court, this court does discharge a function as a Court of justice and in relation to the administration of justice in these Courts. State Vs. S.W. Lakitullah (1958) 10 DLR 309.

 

-Criticism of the act of courts and judicial officers done in their administrative capacity, if contains improper imputations amounts to contempt of Court. Criticisms even of acts done or omitted to be done by judicial officers and courts in their administrative capacity, if containing improper imputations, would also amount to contempt of Court. State Vs. S.W. Lakitullah (1958) 10 DLR 309.

—In the case of Sir Edward Snelson, the offending passage which contained libellous matters against the Judges were as follows :- "I think every body............in any others case, the power does

exist (see judgment at page 549).

 

Held: (Per C./J-Thcse words constitute a libel upon the Court such as is calculated to interfere with the proper administration of justice by the High Courts and they therefore constitute contempt of Court. Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.

 

—Imputation of unfitness—Publication of libel, itself illegal. In relation to a person's office, it is a libel to impute any unfitness or want of ability to discharge his duties. Thus, it is libellous to impute total ignorance of law to a Barrister. In cases of this kind, no proof of special damage is necessary. "Special damage" meaning in the context, some actual temporal loss. (Per C.J.) Para 7 Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC)535

 

--Contempt of scandalising Court-­Justification therefore itself amounts to contempt. Equally, the defence of fair comment is not available. For fair comment it is necessary that facts should be truly stated, it is not enough that there should be absence of malice, or that the expression of opinion should be honest. (Per CJ.) (para 4.8) Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.

 

--To say that the High Courts by exercise of excessive legal ingenuity were deliberately giving wrong decisions in writ matters, that the reprimand of the Supreme Court had no effect on them and that their improper conduct might.be disastrous for the country amount to a gross and aggravated contempt of Court. (Per Akbar, J.) Edward Snelson Vs. Judges, High Court: Lahore, (1964) 16 DLR (SC) 535.

 

—Judge's behaviour in discharge of his duties. A common man always looks upon a Judge as an impartial, unruffled emblem of justice. If a Judge loses his temper, indulges in improper language or becomes excitable, then the impersonal concept of the seat of justice gets a rude shock. (Per Akbar J.) Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.

 

—To impute to the Judges any unfitness, whether on account of incompetence, lack of integrity or otherwise amounts to scandalising a Court. It is necessary as stated by Wilmot, J. "to keep a blaze of glory around them and to deler people from attempting to render them contemptible in the eyes of the public". (Per Kaikaus,J.) Edward Snelson Vs. Judges, High Court, Lahore. (1964) 16 DLR (SC) 535.

 

--Attack on impartiality and fair-mindedness of High Court while acting administratively—punishable as contempt. The respondent in a letter to the Chief Secretary wrote, amongst others,the following sentences in which the words "mean machinations and malicious prosecution" did mean and referred to the High Court "J have faith that these essentially relevant documents will not be denied to an officer of outstanding record of honest and brilliant service, who has now to defend himself against mean machinations and malicious prosecution." "I invoke the protection of State's sceptre of sovereign authority against all evil designers, however high.".

 

Held: The remarks made by the respondent which were actually against the High Court in the exercise of its administrative functions amount to a contempt of the grossest kind. Even when made in connection with a representation any attack on the honesty or integrity of a judicial officer will be punishable in contempt. The same principle is applicable to an attack on the impartiality and fair-mindedness of a High Court, even when acting administratively. State Vs. Muhsin Tirmizey (1964) 16 DLR (WP) 177.,

 

-Disparaging words used against the Judges of the High Court in a letter addressed to the Chief Secretary of the Province—amounts to gross contempt of Court. Syed Mohsin Tirmizy Vs. State (1964).16DLR(SC)735.

 

No language used before a superior Court tending to lower the dignity of an inferior Court, rather than pointing out its errors, is justifiable. (1953) 5 DLR (FC) 216 [236 left-hand column]. -A transfer application supported by an affidavit contained certain scandalizing remarks about the trying Judge. On proceedings being drawn up against him for contempt of Court, the offending person, inter alia, set up a defence of good intention and that the statements were matters of fact. Held: If a person scandalizes a Judge of a superior Court, it is no good defence to say that his intention was good and he did not like to scandalize the Judge. The lest is whether the writing complained of tended to interfere with due course of justice and not what was the intention of the writer and truth of the statement cannot be set up as a defence. S. Israr Vs. Crown(19?5) 7 DLR [F.C.] 19 [35 right-hand col.]

 

-Scandalous and insulting allegations against Judge contained in transfer application not maintainable under law-Bona fides of applicant-Test. 4 PLD (Sind) 1.

 

--The petitioner in an application for adjournment to move for transfer had said that he had absolutely no hope of justice from the Court and prayed that he might be granted an adjournment so that the petitioner could get a just decision in the case..            

 

Held: To impugn the impartiality or justice.of the Court to its face constitutes gross contempt. Lai Din Vs. Crown 7 PLD (Lah) 16.

 

(Per H. Rahman, J.)- Whenever facts were brought to the notice of a judge which contained the slightest objection to his hearing a case the judge concerned should decline to hear the case. M. H. Khondakar Vs. State (1966)18 DLR (SC) 124.

 

--Litigant or his lawyers must refrain from saying or doing anything which might have the effect of scandalizing the Court. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

-When such a plea of bias is raised it should be remembered that nothing should be said to scandalize the Judge or Judges. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

"Magistrate playing as a tool in the hands of a party"--amounts to serious contempt of Court.

To say that a "Magistrate is playing as a tool" in the hands of a party is a serious onslaught on the dignity of the Cosjrt and these expressions clearly scandalise the Court. Slate Vs. Khandkar Shamsul Hague (1967) 19 DLR 526.

 

-Contempt of Court-Scandalisation of Court is grossest form of contempt : Legal practitioners may be punished for contempt of court even for language professedly used in discharge of their functions as Advocates-Advocate is guilty of contempt in making wild allegations of corruption against the trying Judge without verifying and satisfying himself that the allegations were in fact sustainable-He cannot claim • any privilege if not acted in a bonafide and diligent manner. It has been repeatedly emphasised that they are not agents of the men who pay them but are acting in the administration of justice and in matters of making applications to court they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. The State Vs. Yusuf All Khan (1969) 21 DLR (WP)264.

 

—Scandalisalion of Judges that they acquired property by improper means constitutes gross contempt of Court. The State Vs. Ezaz Mahmood (1971) 23 DLR (Lah.) 41.

 

-Plaint in the Money Suit No. 3, 1980 which contained scandalous allegations against the District and Sessions Judge and the filing of that suit as well as the appeal against the judgment in the suit-all constitute contempt of Court. State Vs. Abdul Majid (1981) 33 DLR 220.

 

-Paragraphs 8,11,14 and 15 of the plaint of the Money Suit have scandalised the Sessions Judge by imputing to his unfitncss, corruption, malafide, misuse of official power and maliciousness, and we feel no hesitation to hold that such such a plaint constitutes a very gross contempt of Court. An anonymous leaflet containing scurrilous matters against the District Judge was sent to the oppositeParty No.2 by some members of the local Bar requesting him to represent the matter to the Government to hold an enquiry into the contents of the leaflet. Opposite party No.2 in his turn sent the representation to the Government with a request to hold an enquiry into the matter and at the same time added a request that to facilitate the enquiry the District Judge should immediately be transferred.

 

Held: The representation was made by opposite party 2 to the Government for an enquiry without arty comment on the allegations contained in the leaflet.If such a representation is stifled by means of summary action for contempt of Court, then it would not be in the interest of justice.

 

The High Court can not approve the opposite party No.2's request to the Government for immediate transfer of the District judge.

 

State Vs. Abdul Majid (1981) 33 DLR 220.

 

11.   Test

 

The real test in cases of this nature is whether ,the publication complained of tended or was calculated to interfere with the course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against person concerned as parties in causes before the cause is finally heard. In determining the effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of, is of any consequence for, what a Court of law is concerned is that it should not permit any one to po*isonwith the fountain of justice before it begins to flow. Attorney-General of Pakistan Vs. Abdul Hamid Sheik, (1963) 15 DLR (SC) 96.

 

—"Reasonable cause" (within the meaning of Clause 8 of the Letters Patent, Lahore).

It has never been doubted that a contempt of Court by a member of the legal profession is a "reasonable cause" for taking disciplinary proceeding against him, the reason being that any such conduct on the part of an Advocate reveals a mental defect which so long as it lasts renders him unfit to remain a part of the system which he seeks to damage by bringing it into contempt. 5 PLD (Lahore) 244.

 

Offending pamphlet-printer and publisher normally liable. 5 PLD [Pesh] 26.

--How circumstances leading to an apprehension in the mind of the litigant developed in the present case. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

(Per SA. Rahman, /.^-Identity of interest with a party is necessary to base the allegation of bias. M. //. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

—Oral statement about contemptuous words •'used require strict proof. Sk. Abdul Bari Vs. Abdus Samad Bhuiya (1977) 29 D.L.R. 20.

 

Court's function before it forms its conclusion.

The duty of the court is to consider all the evidence of both parties and then, to ascertain whether the plaintiffs had clear possession in the suit lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.

 

12.   What    is    contempt   and what    is    not

Intention to cause prejudice not a necessary ingredient. If a publication is "calculated", that is, is of nature or character likely to—that would be contempt. The word "calculated" has two meanings: one is "devised with forethought" and the other "is of a nature or character proper or likely to." The word "calculated" used by the Privy Council in the case of Devi Prasad Vs. Emperor in the sentence "calculated to obstruct or interfere with the course of justice and the due administration of the law."

 

Intention to cause prejudice is not a necessary ingredient in a case of contempt of Court. Abdus Salam Vs. State (1958) 10 DLR (SC) 176',(1958) PLD (SCI 528.

 

-Criticism of the acts of Court and judicial officers done in 'their administrative capacity', if contains improper imputations amounts to contempt of Court. State Vs. Lakitullah (1958) 10 DLR 309.

 

--Person circulating and publishing contemptuous matters, guilty of contempt. State Vs. Lakitullah (1958) 10 DLR 309.

 

-Actual interference with the course of justice not necessary. It is sufficient that they should be calculated to have that effect.

 

'Calculated' means that the offending words should be of a nature or character proper or likely to obstruct or interfere in that matter. ^The words that during the "Muslim League" the judiciary had been influenced by the Ministry amount to gross contempt of Court. State Vs. A. Rashid (1958) 10 DLR 568 (1959) 9 PLR 716.

 

--Conduct that tends to bring administration of justice in disrespect amounts to contempt. This power should be sparingly used and only in serious cases. Md. Samiullah Vs. Slate, (1963) 15 DLR (SC) 150.

Every non-disclosure of relevant fact or absence of every process does not amount to contempt. Md. Samiullah Vs. State, (1963) 15 DLR (SC) 150.

-Injunction order of the Court-­Disobedience of; Person not a party to the proceeding in which the injunction order was passed, not guilty of contempt of Court unless he aids or abets the infringement of the order. Aftabuddin Sarkar Vs. Azahar All (1963) 15 DLR 533.

 

-Defamatory statement in official report even though malicious, permissible. Appellant's speech is not of that kind. (Para 51) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FQ-535.

-Hamoodur Rahman, J.

 

-Fair comment not contempt.

--I would not claim to cloak Judges in any "blaze of glory" nor would I maintain thatyustice is a "cloistered virtue". "Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of Court." (Para 156) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.

 

-The courts on their part should not be too astute in such cases to discover hidden meaning in the words used in making such criticism nor be unduly touchy or sensitive nor should they take notice of any and every derogatory comment where there is no real likelihood of any. substantial interference with the due course of justice. (Para ti$) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.

 

--Criticism of conducts of Judges, which cannot possibly have the tendency to obstruct or interfere with the administration of justice, are not contempt of courts even though they may be libellous attacks on Judges. In dealing with such offensive words or writings courts are not concerned with the actual effect produced by them.

 

"Calculated" in this context means that the offending words should be of a nature or character proper or likely to obstruct or interfere in that manner. (Para 160) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.

 

—Persons circulating and publishing contemptuous matters guilty of contempt. State Vs. S.W. Lakitullah, (1958) 10 DLR 309.

 

-Failure to obey process of Court does not amount to contempt unless something more as contumacious disregard of court's order is established. In the absence of any proof of a contumacious disregard of an order of the court no committal for contempt is possible. Mere failure to obey any process of the court, when other methods of enforcing the process are available, does not amount to a contempt of court unless the person served with the process has done something more to exhibit a disrespect for the process of the Court, as for example, used insolent or indecent expressions or violent or profane language on being served with such a process or assaulted or ill treated the process server.

 

It is the utmost importance that a committal for contempt should not be made unless the disobedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out to flout the order of the Court and to treat with some degree of contumaciousness. Bhawal Vs. State, (1962) 14 DLR (SC) 273

 

--Fair comment, no offence.

Fair and legitimate comment on judgments of a court would not be actionable, provided the limits of bonafide criticism are not exceeded. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. The power to commit should be sparingly used and any technical or formal contempt should be ignored, as hyperscnsitiveness on the part of judges would stifle attach a very sinister significance lo such parties. 7 PLD (Sind) 410.

-In the High Court the position of a party is peculiar. If bias in a Judge is reasonably suspected and for this purpose any statement which forms the basis of the apprehension to be made is true, it is too much to say the party is helpless and its lawyer is powerless.

 

If any statement which forms the basis of the apprehension is made which is true or is based on careful enquiry, no exception can be taken but if it is otherwise, the act amounts to contempt of Court. Reasonable apprehension of bias in a Judge can be stated.                                                   

 

In placing the plea of bias as against a Court no person is entitled to" commit contempt of Court. The law permits a party to a proceeding to place his case before the court and at the same time it prohibits commission of contempt of Court. (Para 102). State Vs. M. Noman (1964) 16 DLR 393.

 

Power of committal.—Power of committal given to superior Court is a necessary power given. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority. (Para .28). Edward Snelson Vs. Judges, 11.C. Lahore (1964) 16 DLR (SC) 535.

 

-It is necessary to arm the Courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in their capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of Courts. (Para 29) Edward Snelson Vs. Judges, II.C. Lahore (1964) 16 DLR (SC) 535.

 

(Per Cornelius, CJ.)-Allegation of bias-When bias genuinely apprehended in the Member of a Bench: a bold and full declaration to that effect-No offence. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

-Contact between a presiding Judge and a litigant while the latter's case is pending before the Judge resulting in some advantage going to the latter~A serious matter. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

-Seeing several acts in isolation and not taking a full view of all circumstances in their proper context may not convey a complete appreciation of legitimate apprehension in the mind of a litigant. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

-Statements made in relation to what had taken place in the Court room by the petitioner and his lawyers were contemptuous—Due care and circumspection must be exercised by a litigant when making allegation of bias. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.

 

—Repetition of contempt matter before the Supreme Court in regard to the Judges of the High Court is equally a contempt. M. H. Khondakar Vs. Stale (1966) 18 DLR (SC) 124.

 

Disobedience to the process of Court.

Mere failure to obey process of Court when other matters of enforcing the process are open,, does not constitute contempt deserving summary punishment. M. 0. Ghani Vs. A.N.M. Mahmood (1966)18 DLR(SC) 463.

 

-The law of contempt is a device to restore the balance in the scales of justice, when upset by unauthorised interference with processes of law and punishment, which may lead to a cul de sac, has never been, by itself, the end of law. Aziza Khatun Vs. The State (1967) 19 DLR 355.

 

Officials (Custom Offices) were directed by the High Court to release goods seized-Goods accordingly released but next moment re-seized--Contention raised re-seizure amounted to contempt of Court—Held no contempt of Court committed.

 

Some Officers of the Sea Customs, Karachi raided some cloth shops in Karachi and seized imported foreign cloth from the shops. The petitioner (one of the shop-keepers) moved the High Court and challenged the action of the Custom Authority. The High Court in a judgment declared that the seizure of the cloth was without any lawful •authority and ordered return of the cloth of the petitioner after preparing an inventory of the goods. The Custom Authority released the goods and delivered the same to the petitioner but just after the goods were loaded on a truck by the petitioner; the Custom Authority once again seized the goods under section 178 of the Sea Customs Act.

 

It was "contended that the Custom Authority in re-seizing the goods had violated the orders of the High Court.

Held : The action of the Custom Authorities gives the impression that the delivery of the seized goods to the petitioner by the Custom Authorities was made more in their anxiety to comply with the orders of the High Court rather than to defy it. They have re-seized the goods in their belief that the order of the High Court had not placed any restriction on them to do so. The High Court in disposing of the contempt application has said that no restriction was placed on the Customs Authorities against reseizing of the goods if the requirements of law were fulfilled. When the High Court itself thinks that in re-seizing the goods the Custom Authorities had purported to act in the, exercise of their powers and no contempt was committed by them, it becomes impossible to think that the Supreme Court should feel differently, for the dignity of the superior Courts to see that their orders command absolute submission. In proceedings for contempt where the ' conduct of a person who has apparently defied the orders of the Court leaves room for doubt with ) regard to his intention and a belief is possible, that he has acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him. S.M. Yousuf Vs. S.K. Rahim (1969) 21 DLR (SC) 121.

 

—Contemner's defence in a contempt proceeding, aggravates the offence.

In a contempt proceeding the contemner is not allowed to prove the truth of the allegation because this will bring the contemner into further contempt by pleading the truth and offering to prove it but the contemner can, however, prove the truth of allegation made against him in the contempt proceedings, that is, whether the contemner had indeed done the act or made the writing forming the basis of the accusation. State Vs. Ezaz Mahmood (1971) 23 DLR (Lah.) 41

 

-A successor-in-office of a person who has been guilty of contempt of court cannot be held . guilty on the plea that he took no step to cancel letter which constituted contempt issued by is procedessor. M/s. The Free School Street Property Ltd. Vs. Bangladesh (1978) 30 DLR 6.

 

—Contempt of Court, not defined-Each case rests with a Judge for his decision.

Nowhere in the statutes contempt of court has been defined and it has been left to the Court to determine on the merits of each case whether particular act or speech or publication constitutes' "contempt of Court." It is for the Judges only to decide whether, on the applications coming before them, any specific act of the respondent cornea within the mischief of the law of contempt. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.

 

-Terming a judgment biased, including adulation of a judgment or a judge may constitute contempt. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.

 

-Contempt proceeding is not to be used as a protection to a judge in his individual capacity-Underlying idea is to maintain the authority of the court in the estimation of the public and that confidence in justice is not shaken. Abdul Mannan Vs. State (1977) 29 DLR 311.

 

-'•Words used by a person not a party in the proceeding in court aimed at a court of justice may be contemptuous—Insulting words may be contemptuous-Tone employed may change its innocent character. Sk. Abdul Bari Vs. Abdus SamadBhuiya (1977) 29D.L.R20.

 

-Proceeding for contempt of court are of a quasi-criminal nature. Benefit of doubt to be given in case of reasonable doubt. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR-(AD) 203.

 

--Contempt of court being quasi-criminal in nature the respondent contemnei is not like an accused in a criminal case. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.

 

—Object of the contempt proceeding is to protect the dignity of the court and not to satisfy the grudges of any private individual. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.

-Technical disobedience not amounts to contempt of court. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.

 

-Notice issued for contempt of court must set out precisely details which constitute contempt. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.

 

Circumstance and events which constitute contempt of court elaborated.

'Contempt of Court' has nowhere been defined in statutes. It has been conveniently described by referring to its ingredients and citing examples 'Contempt' may be constituted by any conduct that brings authority of the Court into disrespect or disregard or undermines its dignity and prestige. Scandalising the court is a worst kind of contempt. Making imputations touching on the impartiality and integrity of a Judge or making sarcastic remarks about his judicial competence is also a contempt. Conduct or action causing obstruction or interfering with the course of justice is a contempt. To prejudice the general public against a party to an action before it is heard is another form of contempt. Court's special responsibility in maintaining the self-imposed code of conduct—Behaviour and dealings with reference to those who come in contact, their keeping open and fair mind and impartiality-all emphasised. Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.

 

Sentence—when contempt of court is found to have been committed.

Opposite party No.l Abdul Majid Munshi is found" guilty of gross contempt of Court and sentenced to suffer simple imprisonment for one month. Opposite party No. 3 Abdul Malek Munshi is guilty of contempt but since he has tendered unqualified apology although at a very late stage, he is reprimanded and let off with a warning only. As regards opposite party 4, his contention being that he did not realise the implication of filing an appeal so the court took a lenient view of the matter and let him off with a warning. State Vs. Abdul Majid (1981) 33 DLR 220.

 

--Filing a suit Containing contemptuous allegations against a Judge constitutes contempt of Court.

Money Suit was for recovery of compensation from the learned Sessions Judge for rejecting prayer of Abul Kalam for a discharge warrant. It cannot be disputed that the very filing of a suit of this nature is gross contempt of Court. If the plaintiff had any grievance against the rejection of his prayer for a discharge warrant, his remedy was to move the superior Court against the said order, but to file a suit for recovery of compensation for the said rejection and that too containing scandalous statements against the judicial officer, would clearly amount to lowering the judiciary in the estimate of the people and obstruction of the administration of justice. State Vs. Abdul Majid (1981) 33 DLR 220.

-Use of word "malicious" against the remarks of the trial court in the order while rejecting the plaint constituted contempt. As regards the allegation against opposite party No. 3 that in the application for leave to appeal he characterised the impugned remarks of the learned Munsif as "malicious" constitutes a clear contempt of Court. An order or remarks made by a Court may be erroneous in fact and in law but it cannot be termed as "malicious" with impunity. Opposite party No.3 Abdul Malek Munshi is guilty of contempt of Court for using the word "malicious".

 

A lawyer should exercise great care and caution in drafting and filing application or plaints in Court and see that it does not contain any reflection upon the integrity of the Court. Opposite party No.3.

 

Abdul Malek Munshi, however, has tendered unqualified apology for using the word 'malicious1 in relation to the impugned remark, after a vain attempt to justify the same. Even though the apology was tendered at a very late state, we are inclined to take a lenient view of the matter. State Vs. Abdul Majid (1981) 33 DLR 220.

 

13.   When   proceeding    for contempt    should   be    taken.

—The power of commitment for contempt "should be used sparingly and only in serious cases" and that Court should not be cither unduly touchy or over-astute in discovering new varieties of contempts, for "its usefulness depends on the wisdom and restraint with which it is exercised". Md. Samiullah Vs. State. (1963) 15 DLR (SC) 150.

 

—When considering whether a particular act amounts to a contempt or not to balance on the one hand the effects it might have on the litigation with, on the other, the wider public interest of extending to litigant public the freedom of conducting their litigation without being constantly under the threat of conviction for contempt and only if on the balance there is benefit to the public interest in the wider sense, this power should be utilised. Md. Samiullah Vs. State. (1963) 15 DLR (SC) 150.

 

—The summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended. Joseph Vs. Queen (PC) (1953) 5 DLR 540 (544 left-hand col).

 

-Procedure in contempt matters not regulated by the law-High Court may pronounce orders upon hearing a part only of the evidence.

Abdur Rashid Vs. Mehar Falak (1955) 7 DLR (FC) 162.

 

—When proceeding should be taken.--The offence of contempt of Court may be committed in relation to any proceeding though not judicial in character if there is specific provision to that effect.' (Per Akram). Sk. Abdul Huq Vs. Crown (1955) 7 DLR (FC) 197.

 

-The Court of Inquiry under the Punjab Disturbance (Public Inquiry) Ordinance in dealing with contempt proceedings was acting judicially and, as such, its order could be the subject of an appeal to the Federal Court. (Per Mohammed Sharif, J.) Sk. Abdul Huq Vs. Crown (1955) 7 DLR (FC) 197.

 

--The Court of Inquiry constituted under Ordinance was not a Tribunal exercising judicial power and therefore it cannot be said to be a Court or its Members Judges or Judicial officers. No appeal would lie against an order passed under the Ordinance by the Court of Inquiry. (Per Shahabuddin, J.—disagreeing ) Sk. Abdul.Huq Vs. Crown (1955) 7 DLR (FC) 197.

 

—More vigilance on the conduct of Court is necessary in circumstances which have happened in the present case to prevent a danger to the cause of justice. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.              

 

-While sitting as a Court of Law the Judges should not be too 'sensitive, should have a measure of indulgence to lawyers when arguing case. Abdul Mannan Vs. State (1977) 29 DLR 311.

 

-Contempt proceedings, are quasi-criminal proceedings and the charge of contempt must be proved to the hilt. Any summary power to punish should be sparingly used. MahbuburRahmanSikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.

 

--Civil contempt and criminal contempt-What civil contempt means explained.

Badrul Haider Chowdhury, J:- Contempt of court means civil contempt or criminal contempt and civil contempt is defined as wilful disobedience to any judgment, direction, order, writ or other processes of court or wilful breach of an undertaking given to the Court. Mahbubur 'Rahman Sikder Vs. Mujibur Rahman Sikder (2983)-35 DLR (AD) 203:

 

--The distinction between criminal contempt and civil contempt.—

Thedistinction .between criminal contempt and civil contempt is narrow. It was held in Catmur Vs. Knatchbull the non-performance of an award was a contempt of the court and might be regarded technically an offence. But as it related simply to a civil matter, and was rather in the nature of process to compel the performance of specific act, the matter was in substance not criminal but civil. Mahbubur Raman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203;

 

-Contempt of court does not always take the form of criminal contempt.

There are many contempts of court that are not of a criminal nature; for instance, when a man does not obey an order of the Court made in some civil proceeding to do or abstain from doing something as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt, that is really only a procedure to get something done in ihe action, and has nothing of a criminal nature in it. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.

 

-Contempt proceedings may be initiated primarily to vindicate court's authority or it may be as a coercive measure to enforce the litigant's rights or may be for both. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.

 

Sentence that has been imposed in this case-

Not in form Proceedings are quasi-criminal In a contempt proceeding which is quasicriminal in nature, the contemner is entitled to benefit of doubt, and since the Court is both prosecutor and judge, rule as to proof of guilty of the contemner must be strictly observed. Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.

 

-Court's special responsibility in maintaining the self-imposed code of conduct-Behaviour and

dealings with reference to those who come in contact, their keeping open and fair mind and impartiality-all emphasied, Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.

 

-Dignity, independence of the courts of law must at all costs be upheld, otherwise society will collapse. State Vs. Abdul Karim Sarkar (1985) 37 DLR 26.

 

--The contemner, an U.N. O. is guilty of gross contempt of court, which he tried to shield by still worse acts and punishable as such. State Vs. Abdul Karim Sarkar (1985) 37 DLR 26.

 

Proceedings for contempt of court are of a quasi-criminal nature—Benefit of doubt to be given in case of reasonable doubt.

 

It may be borne in mind that though a contempt proceeding is quasi-criminal in nature, the respondent contemner is not like an accused in a criminal case since he may file affidavit or make statements on oath in refutation of the allegation against him. We find the contemner guilty of committing contempt of court by wilful disobedience of court's order. We, there, convict him and sentence him to pay a fine of Tk. 1,0007- in default, to simple imprisonment for three months. Mahbubur Rahman Vs. Majibur Rahman (1983) 35 DLR (AD) 203.

 

Contempt of Court-Power  to punish.

"The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is'given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise". MoazzemHossain Vs. State (1983) 35 DLR (AD) 290.

 

--Contempt of Court-Power to punish for contempt vouchsafed to the Supreme Court, to be used judicially and with great caution. Risk in case of its misuse. The Privy Council in the case of Joseph Vs. Queen while emphasising'the necessity of the court possessing power to punish for contempt sounded a note of caution that this power must be exercised very sparingly and only in the case of extreme necessity.

It is a power which a Court must of necessity possess, its usefulness depends on the wisdom and restraint with which it is exercised and to use it to suppress methods of advocacy which are merely offensive is to use for a purpose for which it was never intended. The law of contempt of our country is based on Common Law of England and as such the observation of the Privy Council as quoted above has got great persuasive value in our case.

 

Contempt of Court—Supreme Court's power; F. K, M. A. Munim, C.J. To

commit someone for contempt of court and punish him for it if found guilty, is the inherent power of a Court of Record. The Supreme Court of Bangladesh is such a Court. The power is no doubt extra­ordinary. The judge who commits any one for contempt of court is both prosecutor-and arbiter of-the alleged offence. It is, therefore, not unusual to issue a notice for contempt of court when occasion arises. M, Hossain Vs. State, (1983) 35 DLR(AD) 290. ..

 

Contempt of Court—Proceedings are quasi—criminal.

In a contempt proceeding which is quasi-criminal in nature, the contemner is entitled to benefit of doubt, and since the Court is both prosecutor and judge, rule as to proof of guilt of the contemner must be strictly observed. M. Hossain Vs. State, (1983) 35 DLR (AD) 290.

 

—Two members of the Municipal Committee who were not made parties in the injunction case which was filed for postponing the election of the Vice-Chairman of the Municipality were present in Court when the order of injunction was passed by the Munsif. They later on participated in the meeting and voted for Vice-Chairman's election.Held : Though not parties in the-injunction case they were guilty of contempt of court under Act XII of 1926. M.A Zaher Vs. Mainuddin (1976) 28 DLR (Appl. Divn.) 165.

 

CONTEMPT OF COURT ACT. (XII OF 1926)

Sec. 1 gives the title of the Act and provides for its extent and commencement. Sub-section (1) of Sec. 2 deals with the powers of the High Courts established by Letters Patent to punish contempt of courts subordinate to them. Sub-section (2) of the same section deals with the powers of the Chief Courts to punish contempts of themselves. Sub-section(3) of the same section prohibits the High Courts from taking cognizance of contempt of the Subordinate Courts punishable under the Penal Code. Sec. 3 is the penal section and limits the punishment for contempt of court to six months' imprisonment or Rs. 2,000 fine.

This analysis of the Act clearly indicates the following :

1. So far as the High Courts are concerned, it merely deals with their power to punish contempt of the courts subordinate to them, and does not, either expressly or impliedly, make any provision for the High Courts to deal with contempt of themselves. By sub-section (1) of section 2 it empowers the High Courts to punish contempt of the subordinate courts and by sub-section (3) of the same section, it prohibits them from taking cognizance of contempt of the subordinate courts which is punishable under the Penal Code.

The Act presumes that the power of the High Courts to punish contempt of themselves does already exist and consequently empowers them to exercise the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of contempt of subordinate courts "as they have and exercise in respect of contempts of themselves."       

 

Evidently, therefore, sec. 3 provides a penalty for the contempts only which are specifically made punishable by the Act and does not affect those contempts which were already punishable. From this it naturally follows that the inherent power of the High Courts as Superior Courts of Record to punish contempt of themselves has not been taken away by the Act. It has been left undisturbed and, consequently, the High Courts in India continue to have power to deal with contempt of themselves in the same manner as a Court of Record has under the Common Law of England. Lala Harkishen Lai in • the matter of 1937 Lah. 497—-170 I.C. 375-39 P.L.R. 733-38 Cr.LJ. 883-1.L.R. 1937 Lah. 69

 

Scope—The Act, as its name implies, applies only to Courts of Justice and persons or officers connected with the judicial administration. As such the application of the Act cannot be stretched to include within its purview any breach of undertaking given to or attack on executive authority or power. It will, however, be considered an act of contempt if any criticism of the acts of the .executive published in newspapers is offered in respect of matters which are sub judice or are about to be adjudicated upon, as was clearly stated in Emp. Vs. Khusbalchand. 1945 Lah. 206.-

 

S-2-It is not to be doubted that both the heading and the preamble are to be taken into consideration in interpreting the clauses of the Act, but they are not the operative portion of the Act. The operative portion of the Act which the court has to interpret with regard to this statute is contained in section 2 of the Act. Mohammad Yusuf Vs.Imtiaz Ahmad Kar, 1939 Oudh 13? F.B.—939-40 Cr.LJ. 421-14 Luck, 492 (F£.)

 

Contempt   of   Subordinate   Courts

Procedure for taking action,—It is the duty of all Magistrates who receive letters amounting to contempt of court or upon whom any attempt is made to bring improper influence to bear in connection with their magisterial work, to bring the fact to the notice of the High Court so that action under the Act may be taken. Mahabir Prasdd Vs. C£. Gupta, 1939 Oudh 90.

 

--'Courts   subordinate   to   them'

The words 'Courts subordinate to them' or 'subordinate courts' used in the Contempt of Courts Act are used in a wide sense as including any court over which the High Court has superintendence for the purposes of S. 85, Government of Burma Act, 1935, that is to say, all courts subject for the time being to its appellate jurisdiction. For instance, a Sub-Divisional Magistrate when holding an enquiry

under S. 176 of Cr.P.C. is acting as a Court subordinate to the High Court for the purpose of this Act. Advocate-General Vs. Maung Chit Maung, 41 Cr.LJ. 470.

 

Application under section after termination of proceedings—Where an application under S. 100 Cr.P.C. directed against a particular individual has terminated the filing of complaints under S. 500 of I.P.C. and S. 195 Cr.P.C., by the individual against whom the disposed off application was directed does not in any way affect the trial of any pending proceedings and hence an application under S.2 of Contempt of Courts Act on the basis of such complaints would not be maintainable. Mahadeo Prasad Vs. Dr. Tej Narain Bahadur, 208 I.C. 212-45 CrLJ. 108.

Absence of signature in application, if fataWhough the rules and practice of the court require that petitions for taking action under the Conternpt of Courts Act should be signed by or on behalf of the persons presenting them, still, where the court has before it evidence legally admissible showing prima facie that contempt had been committed, it can and should of its own-motion, issue the rule; and the absence of a proper signature in such cases is not a fatal irregularity and does not entitle the opposite parties to ask for the discharge of the rule. (Tushar Kdnli Ghosh Vs. Governor of Bengal, 60 Cal.603-34 Cr.LJ. 662.)

 

--At a meeting of the Karachi Bar Association, a resolution was passed in the following terms:

"The Karachi Bar Association has learned with great regret and concern of the undeserved insult

given by the Hon'ble Chief Judge to...............and places on record that in its opinidn the attitude of the Hon'ble Chief Judge has been persistently contemptuous -towards the members of the Bar in general and the displaced lawyers in particular, etc."

 

Held : The resolution contains a personal scurrilous abuse of a Judge as a Judge and amounts to contempt of Court. Judges and Courts are alike open to criticism and if reasonable arguments are offered against any judicial act as contrary to law or the public good, no court would treat that as contempt of Court. 2 Pak Cr. Reporter 27.

 

Sees. 2 & 3—Conviction of a person for contempt of Court in the absence of such contemner not justified except in exceptional cases. Editor, Daily Nawa-i-Waqt Vs. State (1966) 18 DLR (SC) 295.

 

—Provision of the section will not be applicable when the offence committed is punishable under the Penal Code as contempt of Court, (7956) 8 DLR 650.

 

The prohibition contained in sub-section (3) of section 2 is limited to cases punishable under the Penal Code as contempt of court but not otherwise. The expression " offence punishable under the Code" in section 2(3) does not imply offence of every description punishable under the Code. Fate Mahamud Vs. Md. Niamat (1955) 7 DLR (FC) 162 (165).

 

Justification   of contempt

 

It is well settled that a plea of justification cannot be raised in answer to a charge of contempt. - Therefore, the Court would not inquire into the facts on the basis of which justification is pleaded by the party. State Vs. Muhsin Tirmizey, (1964) 16 DLR (WP)177(F£.)

 

—Recognition of existing powers of High Court by section—This section expressly recognises the power of the chartered High Courts to commit for contempt. In K.L. Gaubain re. I.L.R. 1942 Lah. 41143 Cr.LJ. The respondent in answer to notice for contempt of Court raised an objection that the Court (Lahore High Court) had no jurisdiction to punish brevi manu any contempt ex facie curiae. The question whether the Lahore High Court can proceed brevi manu to punish contempts of its own authority and the contempts of the subordinate courts has been the subject matter of two Full Bench decisions (Emp, V. Sayyld Habib, 6 Lah. 528-1926 Lah. 1.89 I.C. 833-26 Cr.L.J. 1409 F.B., Muslim Outlook" in the matter of 1927 Lah. 610-103 I.C. 775-28. Cr.L.J. 727.) of that court. The Presidency High Courts and the High Courts of Allahabad and Patna are possessed of this jurisdiction. The Sind, Rangoon and Nagpur High Courts have also exercised the jurisdiction summarily to punish contempts. The decision in Emp. Vs. Jarapore (1940 Sund 239-191 I.C 519-47 CrJLJ- 1.LR. 1941 Kar. 3.) is conclusive as regards Sind. Besides by S. 220, Government of India Act, 1935, every High Court which is mentioned in S. 219 of that Act (and the Lahore High Court is such a court) is constituted a Court of Record and the power to commit for contempt is a necessary incident and attribute of a Court of Record.

A District Sub-Registrar by refusing to stay proceedings pending before him or to send documents to the Munsif, in compliance with the latter's order, commits no contempt of Court. (1953) 5 DLR 454. Dr. A.C. Acharya Vs. FA. Chowdhury.

 

-District Sub-Registrar or Registering Officer is neither a Court nor a court subordinate to Munsif and, therefore, a Munsif has no jurisdiction to stay the proceedings for registration pending before the District Sub-Registrar or the Registration Officer. (1953) 5 DLR 454 Dr. A.C. Acharya Vs. FA. Chowdhury.

Although the Registering Officer is not a Court—a Civil Court—If it really wants the proceedings regarding registration of a document pending before a Registering Officer to be stayed, it is quite competent to restrain the party concerned in the suit from proceeding with the registration of the document instead of trying to restrain the Registering Officer. (1955) 5 DLR 454 Dr. A.C. Acharya Vs. F.A. Chowdhury.

 

—The meaning of s. 2(3) is that where under the Penal Code there is already a provision for punishing a contempt of court, the Contempt of Court Act itself shall have no application; it does not mean that, when the act which has constituted the contempt of court also constitutes an offence under the Penal Code, it may not be punished under the Contempt of Court Act.

 

Where a minor was ordered by a court to be placed in the custody of guardian appointed by the court, the guardian so appointed alone can deal with the marriage of the minor. Disobedience of the order by any other person marrying the minor will not be an offence under s. 228,1.P.C. but comes under the Contempt of Courts Act.

 

An act may be both an offence under the Penal Code and an offence under the Contempt of Courts Act and may be punishable in one or other of both capacities. In re Kaulashia, 1933 Pat. 142-34 Cr. L. J. 770.

—S.2—Articles published in newspaper scandalising judges of Chief Court—Charges ranging from nepotism, favouritism and contravention of procedure rules-Such articles calculated to bring Court into contempt and interfered with administration of justice— Offence under S.2 established—Apologies not made at earliest opportunity—Plea not honest—Such apologies should not be accepted.

 

Articles scandalised judges of this Court, the articles were calculated to bring this Court into contempt and interfere with the administration of justice. The apologies made in this case were not made at the earliest opportunity. They were only made when the matter came up for hearing. It was impossible to say that the attitude of the respondents in this case was such as to indicate any genuine remorse or contrition on their part for the offences committed by them. The plea put forward by them that they did not intend to bring the Court into disrepute or contempt was clearly not honest or truthful. A.I.R 1923 Bom. 242 and 6 Lah. 528 ref. : [(Tyabji, C.J., Constantine, Vellani, Mohamed Bachal and Muhammad Bakhsh, JJ.) Crown Vs. Z.A. Suleri : PL.D.1952 Sind 18].

 

—S. 2—Bar Association — Resolution containing allegations against Chief Judge-Contempt-Contempt by Advocates -Serious view to be taken—Recantation--Humiliation involved sufficient. "Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated, to obstruct or interfere with the due course of justice or the lawful process of the Court is a contempt of Court. The former class belongs to the category which Lord Hardwicke, l.C. characterized as 'scandalizing a Court or a Judge'. That description of that class of contempt is to be taken subject to, one and an important qualification. Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could o- would treat that as contempt of Court (1900) 2 Q B 36 ref. A Resolution of the Karachi Bar Association asserted that by inflicting undeserved insults and persistently treating "the members of the Bar in general and the displaced lawyers in particular in contemptuous manner, the Chief

 

Judge was making it impossible for advocates to present their cases adequately'"and held out the warning that in case of further repetition the Association "will be forced to take measures which it sincerely wishes to avoid." Held that there can be no question about the imputations and threats contained in the resolution being such as were calculated to lower the authority of the Chief Judge and this Court. It has not been argued and it would be impossible to argue that the matter published was merely a reasonable argument or expostulation against some particular judicial acts as being contrary to the law or to the public good. Lord Russel's word in the case above referred to, immediately following the passage which has been cited. "Now, as I have said, no one has suggested that this is not a contempt of Court, and nobody has suggested, or could suggest that it falls within the right of public criticism in the sense I have-described. It is not criticism; I repeat that it is personal scurrilous abuse of a Judge as a judge. We have therefore to deal with it as a case of contempt and we have to deal with it brevi manii," apply in the present case with at least as great a force as they did in that case. Offences of contempt by advocates have ordinarily to be regarded seriously. (In view, however, of unconditional apologies and categorical admissions by the advocates concerned that there was not the slightest justification for the allegations made in the resolution, and in view, further, of the early disassocialidn of one of the respondents from the resolution, and the humiliation involved in the recantation being sufficient punishment in the case of the other, notices of contempt were discharged in the case of both : [(Tyabji, C.J., Constantine, Vellani and Muhammad Bachal, JJ.), Crown Vs. A. Rafique : P.L.D. 1950 Sind 74].

 

—Administrative   acts   of   high   court— Criticism   of,  may  amount  to  contempt.

Contempt can be committed in relation to an administrative act of a High Court. State Vs. Muhsin Tirmizev, PLD 1964 Lahore 434=16 DLR (WP) 177 (FB). (Ortcheson, J). (PLD 1959 Dacca 84Rel.on).

 

--S. 2—Attack by a judicial officer on fairmindedness or integrity of High Court acting in administrative capacity-­Contempt.

Even when made in connection with a representation, any attack on the honesty or integrity of a judicial officer will be punishable in contempt. The same principle is applicable to an attack on the impartiality and fair mindedness of a High Court even when acting administratively. State Vs. Muhsin Tirmizey. PLD 1964 Lahore 434=16 DLR (WP) 177 (FB). (Ortcheson, J).

 

--S.2—Industrial Court—Court contemplated by the Section—When party may be held guilty of contempt of Court.

The industrial Court established under Ordinance (LVI of 1959) is a Court as contemplated by section 2 of the Contempt of Courts Act (XII of 1926) and any libel published against that Court, amounts to the contempt of the said Court, and as such, the High Court has jurisdiction to take cognizance of such contempt.

 

Publication of remarks such as "The Industrial Court of East Pakistan has not the capability of appreciating the problems of workers" and "These . Courts have proved to be the graveyards of workers and the system of judgment adopted was only for denial of justice," have clearly lowered the dignity of the Industrial Court in public estimation and specially before a very large section of workers and employers of the country who are directly interested in the affairs of the Industrial Court. This has not only the tendency to shake the confidence of the public at large in the administration of justice by the Industrial Court but has shaken the same. State Vs. S. M. Mobin, PLR 1064 Dacca 839 (DB). (Siddiky, J).

 

--S. --Justification of contempt—Not permissible—Facts on which justification is   based   are   not   to   be   considered   by Court.

 

It is well settled that a plea of justification cannot be raised in answer to a charge of contempt. Therefore the Court would not inquire into the facts on the basis of which justifipation is pleaded by the party. State Vs. Muhsin Tirmizey, PLD 1964 Lahore 434=16 DLR (W.P. 177 (FB). (Ortcheson, J.).

--S. 2 (iii)--Jurisdiction of High Court—Barred only where contempt is punishable under Penal Code-Offence not so punishable as contempt—Jurisdiction of High Court is not barred.

Sub-section (iii) of section 2 of the Contempt of Courts Act, 1926 means that if contempt of Court was committed with regard to a Court subordinate to the High Court and the act which constituted that offence was punishable under the Penal Code, 1860 as a contempt of Court, the powers envisaged by the Contempt of Courts Act, 1926 shall not be exercised by the High Court. Sub­section (iii) does not mean that if the act which amounts to contempt of Court is punishable under the Penal Code, 1860 not as "contempt of Court" but as some other offence under section 288 of the Penal Code, 1860, the jurisdiction of the High Court under the contempt of Courts Act, 1926 is ousted. Slate Vs. Abdul Aziz, PLD 1962 (W.P.) Lahore 335. (Shabir,J).

 

—S. 2—Lawyer—How must behave towards a Court—Respect to Court necessary.

A lawyer should never forget that however important in substance or principle a matter may be, which he is placing before the Court, he should never forget that his own dignity as a lawyer obliges Jiim to place it before the Court in the manner of submission, couched in the traditional language of courtesy that is due to the Court. He will find that any stand which he takes in support of a right principle will always gain in strength and effectiveness if it is supported by the appropriate courtesy. Rashid Murtaza Qureshi Vs; State, PLD 1966 S.C. 94=17 DLR (SC) 608. (Cornelius, CJ).

 

--It is the Counsel's duty to see that no statements be made to scandalize a Judge by imputing to him motive or judicial dishonesty or by holding up his conduct in court to ridicule. State Vs. M. Noman, (1964) 16 DLR 393 (FB). [Hasan,}).

 

-S. 2--Threat by party to Counsel of other party-- Contempt of Court-­Sentence.

A thing done which is likely to interfere with the proceedings of a Court, though that thing may be a threat to a counsel engaged in those proceedings for one party or the other, amounts to contempt of Court. Therefore, where a party threatened the counsel of the opposite party, he was held to be guilty of contempt of court and was sentenced to a fine of Rs. 20/- and in default to imprisonment for fifteen days. State Abdul Vs. Aziz, PLD 1962 Lahore 335 (DB). (Shabir, J).

 

S. 2(l)--Ground of application to be specially stated for action answer

In case of a charge of contempt of court, the party charged cannot be called upon to.anything not set out specifically in the grounds used before the courts at the time the rale is issued. The party concerned must know what are the points he has to answer. The court has to proceed very carefully and cautiously and it is not enough that because a rule is issued, it has to be determined in one particular manner, without the court examining the grounds upon which it is issued. (Amulya Chandra Vs. Satish Chandra, 1932 Cal. 255-35 C.W.N. 1267-33 Cr.LJ. 369-1361.C. 901.)

 

S. 2(3)--"Offence punishable under the Penal Code" means offence punishable as contempt. ' The prohibition, contained in subsection (3) of section 2, Contempt of Courts Act (XII of 1926) is limited to cases punishable under the Penal Code as Contempt of Court but not otherwise. The expression "offence punishable under the Penal Code" in section 2(3) does not imply offence of every description punishable under the Code : A.I.R 1935 All. 896 dissented from. [(Akram, Shahabuddin and Mohd. Sharif, JJ.). Abdur Rashid Vs. Mehr Falak Sher : PLD 1955 FC 98].

 

—The Lahore High Court has held that it could take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it, notwithstanding the provisions of s. 2(3) of the Contempt of Courts Act, as the words "where such contempt is an offence punishable under the Indian Penal Code" mean that the contempt must be punishable as a contempt under the Indian Code and not punishable only because it otherwise is an offence. (Bennett Coleman & Co. Ltd. Vs. G.S. Monga, (1936)

18 Lah. 34. The Patna High Court has held likewise. Superintendent and Remembrance of Legal Affairs, Bihar Vs. Murali Manohar Prasad, (1940) 20 Pat. 306.

 

All other Courts including the Judicial Commissioners' Courts can only take action for contempt of court under s. 228 of the Penal Code and s. 487 of the Code of Criminal Procedure. Venkatrao, (1922) 24 Bom. L.R. 386-46 Bom. 973.

 

-The Calcutta High Court had held that it had no jurisdiction to commit a person for contempt of a Criminal Court in the mofussil. Amrita Bazar Patrika, (1913) 17 C.W.N. 1253. 1282. But the Bombay High Court was of opinion that it had such power. Balkrishana Govind Kulkarni, (1921) 24 Bom. L.R. 16, 46 Bom. 592. The Allahabad High Court in earlier cases took the same view. Abdul Hasan Jauhar, (1926) 48 All. 711, F.B; An Advocate. (1928) 29 Cr. L.J. 801. But in a subsequent Full Bench case it laid down that no power to punish for contempt of an Inferior Court existed independently of the Penal Code and the Contempt of Courts Act. The inherent powers of the Supreme Court of Calcutta were not conferred on the Allahabad High Court by the Indian High Courts Act. 1861. (Mahant Shantanand Gir Vs. Mahant Basudevanand Gir, (1930) 52 All. 619, F£.

 

-Two members of the Municipal Committee who were not made parties in the injunction case which was filed for postponing the election of the Vice—Chairman of the Municipality were present in Court when the order of injunction was passed by the Munsif. They later on participated in the meeting and voted for Vice-Chairman's Election-Held: Though not parties in the injunction case they were guilty of contempt of court under Act XII

 

of 192.6. MA. Zaher Vs. Mainuddin (1976) 28 DLR (Appl. Dim.) 165.

S. 2(3)--The prohibition contained in sub­section (3) of section 2 is limited to cases punishable under the Penal Code as Contempt of Court but not otherwise. The expression "offence punishable under the Code" in section 2(3) does not imply offence of every description punishable under the Code. 7 DLR (FC) 162 (at page 165)

—Provisions of the section will not be applicable when the offence committed is punishable under the Penal Code as contempt of Court. (1956) 8 DLR 656.

 

SECTION 3

 

Synopsis

1.   Apology.

2.  Committal when ordered.

3.  Defence in contempt proceedings.

4.  Delay in prosecution. .

5.  Disobedience of order.

6.  Initiation of proceedings.

7.  Mens rea.

8.  Newspaper report.

9.  Sentence.

10. Transfer application.

 

 

 

(1)          APOLOGY

 

(2)          First accepted.proviso—Apology—When   may  be Before apology is accepted the following conditions must be fulfilled :

(a)   the apology must be offered at the earliest stages of a contempt proceeding and not postponed till the end of the proceedings;

 

(b)     the apology must be unconditional, unreserved and unqualified;

 

(c)    the apology should be sincere and the outpouring of a penitent heart, and not half-hearted or for its mere sake or as a formality;

 

(a)    if an apology is to be effective, attempts at justification of an act of contumely or contempt should be scrupulously avoided;

 

(b)   if the charges are grave and amount to a flagrant defiance of Court authority or dignity, punishment will follow though the apology, if tendered in time, may soften or mollify the rigour of punishment. State Vs. Munawar Khan, PLD 1963 Peshawar 195(DB).

 

 

Lawyer not appearing as a witness in High Court because of professional engagement-Apology filed at earliest opportunity-Apology accepted. When a lawyer was summoned to appear before the High Court as a witness and he did not appear because he was engaged in a Sessions trial, whereupon a contempt of Court notice was issued to him. He submitted an apology at the earliest c T)portunity. The Court accepted the apology but bi "dened him with the costs of the Advocate-General fixed at Rs. 200. State Vs. Munawar Khan, PLD

1963 Peshawar 195 (DB).

 

Repetition of negligence leading to contempt-­Apology may not be accepted. Where the publication is due to a repetition of negligence which has been condoned in the past an apology becomes little more than an idle form. Mushtaq Hussain Vs. Editor, Daily 'Dawn" PLD

1964 Karachi 367.

 

Knowledge of the Court's prohibitory order is enough to constitute contempt of Court. 8 DLR

(WPC) 15.

 

-S. 3--Contempt serious but highly technical-Apology by respondent-Lenient view to be taken : [(Muhammad Munir, C.J. and Rahman, ].) Lahore Improvement Trust Vs. Aziz Beg : PLD 1953 Lah. 579].

 

(2)   COMMITTAL   WREN ORDERED   

 

Committal for contempt—Not to be ordered lightly-Ordered only when contempt is deliberate.

The power to commit for contempt of Court is not to be lightly used and should be reserved for cases where the contempt is deliberate and of such a .nature that committal is called for. In the present case all that can be said is that the respondents acted without due consideration. They have all expressed their regret to the court and we think that the matter may be left there. Sufficient has probably been said to prevent a similar situation arising in future. Mushtaq Hussain Vs. Editor Daily "Dawn" PLD 1964 Karachi 367.

 

(3)    DEFENCE   IN    CONTEMPT PROCEEDINGS

 

Truth and justification of contempt-Not permissible defence in contempt proceedings. It is axiomatic in law that truth is no defence in a proceeding for contempt. It is equally well established that there is no defence of privilege in a case of contempt and although justification and privilege may be good defences

 

in cases of defamation there is nothing in law like justification of privileged contempt. State vs. Adam, PLD 1965 Karachi 45.

 

(4)   DELAY   IN   PROSECUTION

 

Delay in prosecution caused by delay in supply by High Court office of translation of contemptuous passages in newspaper—Not proper. Even where delay in prosecution of the newspaper for publishing a news item relating to a subjudice matter was caused by the late supply of translation of news items by the High Court office, it was observed that this cannot excuse either the applicant or his Advocate for this inordinate delay of eight months in prosecuting these applications. Such delay would indicate lack of interest or seriousness on their part in pursuing the applications. Mushtaq Hussain vs. Editor, Daily "Dawn" PLD 1964 Karachi 367.

 

(5)   DISOBEDIENCE   OF

ILLEGAL   ORDER,   NO

CONTEMPT

 

Illegal order passed by Magistrate— Disobedience of order is not contempt..

Where a Magistrate passed an order without jurisdiction so that the order was a nullity and on the disobedience of the order, contempt proceedings were drawn against the police officer who had' disobeyed the order.

Held: A presumption attaches to orders of superior Courts that they are with jurisdiction, but no such presumption attaches to an order of a subordinate Court. Therefore, disobedience of the order which was without jurisdiction was not contempt of Court. Abdul Haleem vs. Qurban Hussain, PLD 1965 Lahore 570.

 

(6)   INITIATION   OF PROCEEDINGS

 

Contempt proceedings may be initiated on motion of private persons. Although contempt of the High Court is a matter between the Court and the party in contempt, proceedings in contempt must be allowed to be initialed by a motion made by private parties, because that is one of the ways in which cases of breaches of the Court's order may come to the Court's notice. But, at the same time, this liberty or privilege of private parties cannot be allowed to be abused and no person can be allowed to arraign others in a proceeding for contempt without exercising due care and responsibility. The High Court is and has always been jealous of its authority in public interest and will always continue to be so. It will regard persons who bring to its notice qase of violation of its orders as persons who aid in the case of the administration of justice. State vs. Adam., PLD 1965 Karachi 45.

 

--S. 3--Contempt of Courts Act (XII of 1926) (as adapted in Pakistan)~Court, what is—Commissioner appointed under Public Servants Court (Inquiries) Act (XXXVII of 1850) whether a Court-Penal Code (XLV of 1860), sections 19 and 20-Evidence Act (I of 1872),

 

S. 3--"Court" defined and explained. The respondent was a sub-divisional officer against whom complaints of misconduct and corrupt practices were received by the Government. District and Sessions Judge of the place was appointed Commissioner to inquire into the truth of the various charges under the Public Servants Inquires Act, 1850. The Commissioner felt difficulty in contacting the respondent and in communicating his orders to him. The appellant, who was a Deputy Secretary to the Government wrote a letter to the Commissioner which became the subject-matter of the complaint for an action for contempt. It was stated in the letter that the Government were anxious not to allow the respondent to adopt dilatory tactics and the Commissioner was requested to be vigilant against such tactics adopted by the respondent. The respondent moved the High Court to punish the appellant for contempt of the "Commissioner's Court." The High Court held that the Commissioner appointed under the Public Servants Inquiries Act 1850 was a Court subordinate to the High Court, the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt. The appellant was accordingly sentenced. Held, the word "Court" was not defined in the Act and the expression "Courts subordinate to the High Courts" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration throughout the country. The Commissioner appointed under the Public Servants Inquiries Act, 1850 is not a Court because the various provisions of the Act clearly show that the findings or reports of the said Court were not a definitive judgment or judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality. A.I.R. 1954 Pat. 289 reversed. A.I.R. 1951 Panj. 49 overruled. 1931 A.C. 275; (1909) 8 C.L.R. 330; (1924) I.K.B. 171; 1950 S.C.R. 730 ; (1937) 2 K.B. 309; 1954 S.C.R. 1150: (1892) I.Q.B. 431; (1873) 8 Q.B. 255; (1875) ILL. 744; A.I.R 1954 Nag. 71 ref: [(Bhagwati, Sinha and ImamJJ). Brajnandan Sinha Vs. Jyoti Narain: P.L.D. 1956 S.C. (Ind.) 65].

 

(7)    'MENS   RE A1

Intention and motive—Irrelevant in contempt proceedings. Motive and intention are irrelevant considerations in a matter of contempt. State vs. Adam, PLD 1965 Karachi 45.

 

(8)    NEWSPAPER   REPORT

 

Contempt by several newspapers—Only one cited in contempt petition-Purveyor of news item dropped by counsel for petitioner-Conduct of counsel disapproved as discriminatory. Where the petitioner for contempt cited only one out of the several newspapers which has published the news item in contempt proceedings, and later on one of the respondents the person who had supplied the news item was dropped from the proceedings, it was observed that such-discrimination in contempt matter has been frowned upon by Courts. Mushtaq Hussain vs. Editor, Daily "Dawn", PLD 1964 Karachi 367.

 

News of matters 'subjudice' published by newspaper--Contempt--Apology tendered cannot wash out contempt-­Serves as mitigating circumstance.

Where a news item regarding a subjudice matter was published by a newspaper it was held that the publication amounted to a contempt of Court, but the court took into consideration the apparent promptitude with which the newspapers published apologies in the issues of their papers after receiving notice of contempt served on them and also the fact that the respondent newspaper through their Editors, Printers and Publishers filed either affidavits or written statements in this Court expressing their sincere regret for the publication in question and tendering their unconditional and unqualified apologies to this Court. It was held that such apologies cannot serve to completely wash out the guilt of the respondent newspapers. But they certainly can be considered as mitigating circumstances Mushtaq Hussain Vs. Editor, Daily "Dawn" PLD1964 Karachi 367.

 

News item regarding "subjudice" matter-Apology must be made to court. Where notices for prosecution for contempt were issued to the newspapers and they tendered apologies to the Court. Held: Such apologies in matters such as these are due to the court and not to the person who is the victim of the article in question. Mushtaq Hussain vs. Editor, Daily "Dawn", PLD 1964 Karachi 367.

 

(9)    SENTENCE

 

Where a District and Sessions Judge was guilty of gross contempt of the High Court. Held: For an offence of this nature a substantial term of imprisonment would not, in my opinion, be uncalled for but keeping in view the age of the respondent I would sentence him to imprisonment till the rising of the court and a fine of Rs. 2,000. State Vs. Mushin Tirmizev, 16 DLR (W.P.) 177 (FB).

 

—Sentence—Lady contemncr tendering apology-Gross contempt—Sentence of fine of Rs. 100. .

Where a lady had filed an affidavit which amounted to gross contempt of the court but she made unqualified apologies and was sincerely penitent. The Court convicted her for contempt and then sentenced her to a fine of Rs. 100 and in default simple imprisonment for one week. State vs. Adam, PLD 1965 Karachi 45.

 

Threat by party to Counsel of other party--Contempt of court-Sentence. A thing done which is likely to interfere with the proceedings of a Court, though that thing may be a threat to a counsel engaged in those proceedings for one party or the other, amounts to contempt of Court. Therefore, where a party threatened the counsel of the opposite party, he was held to be guilty of contempt of court and was sentenced to a fine of Rs. 20/- and in default to imprisonment for fifteen days.-State, vs. Abdul Aziz, PLD 1962 Lahore 335 (DB).

 

Case under section 500 of Pak. Penal Code and suit for damages for defamation pending against an Editor of a magazine—one-sided version of litigation published in the magazinc.-Publications revealing definite attempt on the part of the Editor to create atmosphere favourable to himself and prejudicial to complainant-contempt of Court, 5 PLD (Lah) 579.

 

10.    TRANSFER   APPLICATION

 

Allegation of bias in transfer application against Presiding Officer of Trial Court before High Court—Not contempt—Duty of lawyer drafting application-Extent of responsibility of lawyer for allegations made.

Where allegations of bias in the Presiding Judge of the trial Court are made in a transfer application made to a Superior Court it cannot be said that application would amount to contempt of Court. When the allegations are wild it is for the counsel, as an officer of the Court, to take normal care to satisfy himself that they are not entirely without foundation. In applications for transfer of cases the Court is not called upon to testify whether the allegations against a particular Tribunal stand affirmed with any degree of certainty. The scope oT inquiry is limited to the finding th'at circumstances are shown which can form the basis of creating a reasonable apprehension in the mind of the litigant that he will not have a fair trial—a conclusion which otherwise may be unjustified. This being the scope of that inquiry, I do not think how a counsel could be fixed with greater responsibility of sifting facts and then to take a decision in advance for the client whether these circumstances would or would not justify the grievance which he wishes to be examined by the superior Tribunal. State Vs. Badaruddin, PLD 1962 Karachi 166-PLR 1962 (I) W.P. 867.

 

Contract Act   (XI of 1872)

S. 23—When a criminal prosecution has been withdrawn on the accused undertaking to execute a certain bond with certain terms, the bond executed will be unlawful and the person in whose favour the bond has been executed will derive no benefit from it. Probodh Chandra Vs. Abdul Rahman (i960) 12 DLR 459=(1960) PLD (Dae) 983.

 

—Stifling of prosecution-composition even of non-compoundable offences not unlawful when the compromise was an acknowledgment of existing civil liability. Akbar AH Khan Vs. Elahi Buksha Bepari (1960) 12 DLR 854.

 

CONTRADICTING STATEMENT

 

Contradiction in the statement of a witness-is a task of appreciation for the trial and appeal court. Contradiction in the statement of witness, either with his own statement or with the statement of another witness, a task of appreciation of evidence, and therefore, it is within the jurisdiction of the trial Court and the Court of appeal on fact, to deal with the question, No doubt, there is certain rule of prudence governing the case of contradicting statement. Moyezuddin Vs. The Slate (1979) 31 DLR (AD) 37.

 

CONTRADICTORY STATEMENT

 

—Contradictions affecting most important witnesses in murder case—conclusions of Trial Court—Appellate Court should be slow to upset. PLD 1953 FC 93.

 

—Self contradictions in evidence of important witnesses—ground for leave to appeal to Supreme Court. PLD 1956 FC 171.

V     t

-Self contradictions in evidence of witness in Criminal Proceeding—Court of fact to adopt one part or reject the whole by a rule of prudence. PLD 1956 FC 171.

 

-Contradictory statements of witness before committing Magistrate and Session trial—value of—completely ignoring both statements not an invariable rule. PLD 1953 Lahore 495.

 

—Court which has seen and heard witnesses-­Has incalculable advantage in appraising evidence in Appellate Court where statements of witnesses are irreconcilable and self - contradictory. PLD 1952 PC 139.

 

CONTROF OF ENTRY ACT ( LV OF 1952)

Sees. 3 and 4—Mere submission of an application ,for citizenship is not sufficient to exonerate any one from violations of the relevant rules under the Pakislan (Control of Entry) Act. The contention that because the respondent had applied for a Pakistan citizenship was sufficient to prevent him from being prosecuted under the said Act is not tenable. There is no principle recognised in international law which would enable a person by his own volition and by his own act regardless of the will of a State to acquire or terminate a nationality merely by his own choice. A nationality can neither be acquired except with the will of the State. The State has the right even to deprive a national of his nationality should the occasion arise. Supdt. and Remembrancer of Legal Affairs, Govt. of E. Pak. vs. Amalendu Baul (1960) 12 DLR 55: I960 PLD (Dae) 329.

 

S. 3(6)--Read with Ordinance XXX of 1955. Sub-section (6) applies to the Indians who came into Pakistan prior to 22.10.1955. The language of sub-section (6) of section 3 of the Act does not leave any doubt that the provision of that section were introduced to cover not only the cases of Indians who would come into Pakistan on valid travel documents after the 22nd August, 1955 but also the cases of those Indians who had come into Pakistan prior to the 22nd August, 1955 on valid travel documents and over-stayed the period mentioned in the visa. Supdt. and Rememb. of L. Affairs vs. Sunil Kumar Daw (1962) 14 DLR 705.

 

S. 4--A conviction under section 4 of the (Control of Entry) Act cannot validate an order of confiscation of seized smuggled goods under section 7(1) of the Land Customs Act, without a charge under the latter Act. Baidyanath Sikdar vs. State (1956) 8 DLR 447.

 

S. 6 read with S. 3~Not attracted where the accused holds valid passport and visa, but has tampered with contents (1950) 2 DLR (PC) 151.

 

CONVICTION

 

—Accused convicted by Sessions Court under S. 302, Penal Code—Conviction altered on appeal to one under S. 201, Penal Code—See Criminal Procedure Code (V of 1898), S. 237: PLD 1950 Bal. 1.

 

--Accused's statement in Court should be taken into consideration in its entirety if conviction is to be based solely on such statement-See Criminal Trial: PLD 1952 F. C. I.

 

--Alteration of conviction-Powers of Appellate Court are very wide subject to condition that altered conviction should not be such which could not have been recorded by trial Court-See Criminal Procedure Code, S. 423 : PLD 1952 Lah. 609.

 

-Basing conviction on circumstantial evidence—Principle to be followed--See Criminal Trial: PLD 1950 Lah. 288.

 

-Blood - stained handle of hatchet-Recovery at pointing out of accused-Insufficient by itself to support conviction for murder: [(Muhammad Munir, C. J., Akram, Shahabuddin and Muhammad Sharif, JJ.) Siraj Vs. Crown : PLD 1956 F. C. 123].

 

-Conviction cannot be based on extrajudicial confession alone especially where it has been retracted by the maker thereof- Seeconfession : PLD 1954 Lah. 710.

 

-Charges and conviction under Ss. 302, 307 & 149, Penal Code by trial Court-Conviction under Ss. 302 & 307 by Appellate Court-Prejudice to the accused-See Penal Code, S. 149 : PLD 1956 S C

 

-Charge under S. 147, Penal Code on ground of common object of accused to steal paddy seedlings — No mention of Common Object of accused to assault nor had accused any notice of offence under S. 323, Penal Code-Conviction under S. 323, Penal Code, held, illegal-See Criminal Procedure Code (V of 1898), S. 237: PLD 1951 Dacca 128.

 

Charge under Ss. 302/149, Penal Code — Two necessarily fatal injuries ascribed in evidence one to each of two accused — Both accused could be rightly convicted either individually of murder or by the application of S. 34, Penal Code, although they were not charged with same-See Penal Code, S. 749: P.L.D 1956 F C 425.

 

--Circumstantial evidence — No basis for conviction unless incompatible with any other reasonable hypothesis than the guilt of the accused-See circumsuinnal evidence: P.L.D. 1954 Lah. 710.

 

Confession    of    co-accused-Whether

conviction can be based on See Evidence Act, S. 3 etc. : P L D 1956 S C (Ind.) 186.

 

—Confession being sole support for conviction-Not put to accused— Prejudice-Conviction set aside-See Criminal Procedure Code (V of 1898), S. 342 : PLD 1956 S C (Pak) 300.

 

-Confession not put to accused by either Committing Magistrate or Sessions Judge — Conviction unsustainable — See Criminal Procedure Code (V of 1898), S. 342: P L. D. 1952 Lah. 374.

 

--Confession of co-accused cannot be. made foundation of conviction See Evidence Act, S. 30 :P LD 1949 P C 90.

 

—Contempt of Court-Order of fine and imprisonment in default — Order amounted to "conviction" of person held guilty of contempt^Laws   of   Nigeria,   Ch.   229,   S.

10. An order for payment of fine and for imprisonment in default was made by a Judge in the Supreme Court for conduct of a barrister adjudged by the judge to amount to contempt of Court of a criminal nature. Held such order was a "conviction" within the meaning of S. 10 of the Nigerian Ordinance : [(Lord Tucker) Joseph Orakwne Izuora Vs. Queen :PLD 1953 P C46.]

Conviction—Must be based on evidence recorded in Trial Court—Any other material sought to be used against accused must be placed on record after complying with S. 428, Criminal P.C.-Admissioh contained in petition for revision cannot be taken into consideration.

 

Per Abdul Rashid, C. J.— The admission contained in the petition for revision preferred by accused in the High Court at Dacca cannot be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the Trial Court. If any other material is sought to be used against the accused person, such material should be placed on the record after complying with the provisions of section 428 of the Code of Criminal Procedure. Per Cornelius, J. — In the ordinary course, any matter of fact, relevant to a point for determination in the case, should be.established as evidence in the proceedings, in one of the modes known to law. In the absence of a proper statement, made on oath, the adoption of the averments in the revision petition as proof relevant to the determination of the petitioner's case, was clearly irregular. Conviction based on reasons which are not supported by admissible evidence is liable to be set aside: [(Abdul Rashid, C.J., Akram and Cornelius, JJ.) Fazlul Qader Chaudhury Vs. Crown: P.L.D 1952 F C19.]

 

--Conviction—Statement of accused sole basis for—Statement should be read as a whole along with the exculpatory part of it unless the latter is shown to be false by other evidence. Where there is no other evidence to show affirmatively that any portion of the exculpatory statement of the accused is false, the Court must accept or reject his statement as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. In the absence of any positive evidence to show that the statement of the accused is false, he cannot be convicted merely on the basis of his version being highly improbable and incredible. A I R 1931 All. 1 and A I R 1935 Lah. 671 ref: [(Changez, J.) Muzaffar Khan Vs. The State : PLD 1956 Lah. 1045.]

 

-Conviction based on sole testimony of expert—Not safe— See Evidence Act, S. 45: PLD 1956 Kar. 234.

--Conviction based solely on admission of accused—Accused's attention to such admission, or his explanation for same, not called for by Court during accused's examination—Unfair-Violation of principles of natural justice—See Criminal Trial:, PLD 1952 F C 1.

 

—Conviction based on testimony of child witness—Corroboration whether essential-See Evidence Act, S. 118 : PLD 1956 Lah. 840.

 

—Conviction based solely on strength of retracted confession—Dangerous-See Criminal Trial: PLD 1952 Bal. 10.

 

—Conviction by Sessions Judge on evidence partly  recorded  by   him   and  partly  by  his predecessor—in-office—Trial illegal—See Criminal_ Procedure  code   , S. 350 : PLD 1950Lah. 244.

—Conviction cannot be based on extra judicial confession not properly proved—See Criminal Trial: P L D1950 B J 34.

 

—Conviction cannot be based on memorandum of identification prepared by MagistrateSee Criminal Trial: P L D 1952 Lah. 55.

 

__Conviction on basis of confession of co-accused-See Evidence Act, S. 114 etc. : P.L.D. 1949 Bal. 6.

—Conviction recorded under one of, two offences charged—Mere omission to record conviction or acquittal under the other offence not necessarily to be deemed to amount to acquittal of that other offence—Appellate Court may convict and sentence accused under such offence—See Criminal Trial: P L D 1955 Sind230.

 

-Criminal Procedure Code (V of 1898), S. 288-Statements transferred under section—When safe to accept as true-Court when to exercise caution while basing conviction on such statements—See Criminal Procedure Code (V of 1898), S. 288—P L D1956 Lah. 657.

 

--Criminal Procedure Code (V of 1898), S. 342-Non-compliance causing prejudice to accused-Conviction to be set asideSee Criminal Procedure Code(Vof 1898), S. 342: PLD 1955F C 129.

 

--Criminal Procedure Code, S.403—Basis of section-Former Court must have been competent to

record a verdict of conviction or acquittal—If former trial was without sanction Court was not so

competent-SeeCriminal Procedure Code, S. 403 PLD 1949 P C 108.

 

—Decision of Court must not be based merely on the ground that prosecution version is more probable than defence version—See Criminal Trial: PLD. 1954 F C 300.

 

—Element of doubt in regard to which of several offences committed—Charge under S. 302/149, Penal Code—Conviction of two accused under S. 302 legal—See Criminal Procedure Code (V of 1898), S. 236, etc. : P L D 1956 S.C. (Pak.) 440.

 

—Evidence of prosecution witnesses wholly rejected as unreliable so far as most of accused were concerned—Unsafe to convict remaining accused on same evidence in absence of confirmatory circumstance—See Criminal Trial: P L D 1954 FC 84.

 

—Extra-judicial confession[Before person taking prominent part from very beginning in prosecution of case against accused—Utmost care and caution necessary in basing conviction solely on such confession- See confession : P L D 1952 F C IB.

 

—Failure to question accused on main evidence against him-No suggestion of prejudice from counsel—Conviction upheld— See Criminal Procedure Code (V of 1898), S. 342: PLD 1956 FC143.

 

—Initial complaint disclosing offence under S. 379, Penal Code—Whether conviction under S. 427, P.P.C. maintainable—See Penal Code S. 379, etc.:PLD 1956Dacca 140.

 

..Interference by Supreme Court in cases of conviction__See .Constitution of India. Art 136: PLD

1956 S C (Ind.) 327.

 

—Killing in right of private defence or under grave and sudden provocation—Conviction cannot be had under S. 304(1) Penal Code (XLV of I860)-, See Government of India Act 1935, S. 212: PLD 1953 Lah. 588.

 

—No clarification from the record whether Judge agreed or not with" view of assessors, who found accused guilty—Amounting to no conviction by Judge-Sentence and conviction quashed- See Criminal Procedure Code (V of 1898), S. 309: PLD 1947 PC 220.

 

-Opinion of assessors in respect of all charges not takcn-Conviction whether legalSee^ Criminal Procedure Code (V of 1898), S. 309: P LD 1956.SC (Ind.) 197.

 

—Penal Code, Ss. 120A and 120B—Several accused—Whether one can be con victed> when the rest acquitted—See Penal Code, S. 120A, etc.: P. L.T>. 1956 S. C. (Ind.) 215.

 

—Penal Code, Ss. 232 and 235-Separate convictions and sentences under the two sections are illegal—See Penal Code, S. 232, etc. : P L D 1949 Lah. 179.

 

—Point on which conviction is sought to be based—Must be specifically put to accused to enable him to explain allegations made against him— Offence under S. 409, P.P.C.-Amounts alleged to be misappropriated forming basis of conviction must be specifically put to accused for being explained-Omnibus question on total amount misappropriated not enoughsSee Criminal Procedure Code (V of 1898), S. 342 : P L D 1956 Kar. 310.

 

— Powers of Appellate Court to alter conviction—See Criminal Procedure Code, S. 423: PLD 1952Lah. 11.

 

—Prosecution evidence disbelieved-Conviction whether could be based on defence evidence or confessional statement—Whether exculpatory part of such evidence could be left out of consideration— See Criminal Trial: PLD 1954B J9.

 

—Prosecution version implicating innocent persons from stage of F.I.R.—Only eye-witness, of tender age and servant of deceased—Held, it was unsafe to maintain convictions—See Criminal Trial PLD 1956FC 31

 

—Retracted confession can form basis of conviction if true- See confession : PLD 1951 Azad J & K 47.

—Sentence—Offence of receiving stolen property under S. 411, P. P. C.— Property alleged to be part of 3 different thefts of different dates but recovered from accused at one and the same time-^ In the absence of evidence to prove that stolen articles were received at 3 different times, 3 separate convictions and sentences cannot be sustained- Criminal Procedure Code (V of 1898), S. 35. In the absence of any evidence to prove that the stolen articles were received by the appellant not at one and the same time but at different times separate convictions and sentences cannot be legally sustained. Appellant was convicted under section 411, P.P.C., on three counts and was sentenced to rigorous imprisonment for two years under each count, the sentences to run consecutively. No evidence was adduced as to when the stolen articles were received by the appellant. The property recovered from appellant at one and the same time

was alleged   to belong to 3 different thefts of 3 different dates and belonging to 3 different persons.

Held, that the separate accounts for receiving stolen property should be treated.as a single offence although the thefts relating to them may have taken place on different dates in different places and regarding properties belonging to different persons and the appellant should be convicted of only a single offence under section 411, P.P.C. 50 Cat. 594 and A I R 1925 Pat. 20 ref: [(Muhammad Munir, C.J., Akram and Cornelius, JJ.) Rafiquddin rt.Crown :PLD 1955 F C 183.

 

—Separate sentences for convictions on separate charges, not passed—Irregularity is curable under S. 537 (a)-s«Criminal Procedure Code (V of 1898), S. 35 etc.: PLD 1949Lah. 179.

'

—Several accused tried-Conviction under S. 302 read with S. 34, Penal Code when all except one acquitted—Conviction whether maintainable-See Penal Code, S. 302, etc. : P L D 1956 S C (Ind.)59.

—Stolen property found in possession of various accused-Subject-matter of more than one theft-Clause (f) S. 293 Criminal P. C. not attracted—Joint-trial held illegal—Conviction quashed—See Criminal Procedure Code (V of 1898), S. 239 (0 : P L D 1950 Lah. 348.

 

—Stolen property found in public place on 1 Dinting out of accused-—Unsafe to convict solely on such pointing out—See Evidence Act, S. 27 : P L D 1951 Bal. 30

 

--Conviction, without discussion and consideration of evidence—Can not be sustained. Ahmed AH Vs The State (1968) 20 DLR 303 Ref. Criminal Trial.

-Conviction, should be based on evidence and noLon conjectures or probabilities. Md. Luiman Vs The State (1969) 21 DLR 461 Ref. Criminal Trial.

 

—Conviction—Omission   to   record Conviction recorded under one of the two offences charged. Mere omission to record conviction or acquittal under the other offence not necessarily be deemed to amount to acquittal of that other offence. Appellate court may convict and sentence the accused for such offence (1955) PLD (Sind)230.

 

Conviction on matters not an record-Illegal some statements were incorporated in the petition of revision which was moved on behalf of the accused before the High Court. These statements did not form part of the record of the case on which was based the conviction of the accused by the Trial Court. The learned Judges of the High Court in arriving at their conclusion that the accused was guilty of the charge he was called upon to answer accepted and relied on these statements made in the petition.

 

Held: The admission contained in the petition for revision in the High Court can not be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the Trial Court. Fazlul Quader Vs. Crown (1952)4 DLR (FC) 104

 

Conviction recorded under one or two offences charged.--Mere omission to record conviction or acquittal under the other offence not necessarily be deemed to amount to acquittal of the other offence-Appellate Court may convict and sentence the accused under such offence (1955) PLD (Sind) 230

 

—Conviction-on one count a person is acquitted and on another count he is convicted. In an appeal only against acquittal, conviction on the other count can not be touched and so the vice-versa. Md, Amir Hossain Vs. The State (1976) 28 DLR 371.

 

--Conviction of several accused on a general finding of theft without consideration of each individual case can not be upheld. Afel Khan Vs. State (1977) 29 DLR 3.

 

-The order sentencing accused to undergo R.I. in default of payment of fine is bad in Law. In such a case the proper course is to impose simple imprisonment. Nizamuddin Mia Vs. The State (1974) 26 DLR 350.

—Conviction on vague allegations not supported by any evidence showing guilt of the accused is bad in Law. Golam Kibria Vs. Khulna Bakery Sramik Union (1980) 32 DLR 138.

 

—Conviction of several accused persons on omnibus statements of P.W. - Can not be maintained. AH Akbar Khan Vs. State (1982) 34 DLR 94.

 

Conviction   on   high   probabilities. Conviction sljould be based on evidence and not on conjectures and probabilities. In a trial for murder of the accused's brother the trial court found the prosecution witnesses making deliberate attempt to damage the prosecution case and having arrived at the conclusion that the accused was guilty of murder convicted and sentenced him to death and in convicting the accused the court relied on the high probabilities inferred from evidence with the observation that "the court is, therefore, not bound to base its findings on evidence alone but has to see to the high probabilities regarding the existence or non-existence of a fact after considering the matters before the Court." The High Court upheld the conviction but commuted the sentence of death to transportation for life.

In a petition for special leave to appeal the Supreme Court observed:

 

"A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjecture and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of I'benefit of doubt" to an accused person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Supreme Court, will be reduced to a naught". Md. Luqman Vs. The State (1969) 21 DLR 461.

 

CORROBORATION

 

The circumstance need not be such that it can, of its own probative force, bring home the charge to the accused. It should, however, be a circumstance which points to the interference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstances should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However, the circumstance itself must be proved beyond all reasonable doubt. Niaz Vs. State (1960) 12 DLR (SC)289.

 

--Corroboration of a confession is sought for two things: Occurrence and the identity of the participants. State Vs. Badsha Khan (1958) 10 DLR 580. ,

 

—One piece of weak evidence requiring corroboration cannot corroborate another weak evidence. Wazir Vs. State (1961) 13 DLR (WP) 5.

 

-A statement made very soon after the occurrence excludes a hypothesis of implication of innocent persons and may, therefore, be used as corroboration. Niaz Vs. State (1960) 12 DLR (SC) 289.

 

To what extent permissible when there is a conflict in evidence between witnesses—Evidence was led that 'A1 & 'B' saw the occurrence of murder. They being interested persons their evidence was sought to be corroborated with the plea that soon after the occurrence they spoke about the occurrence to one 'K'. In cross 'A' and !B' denied that they spoke to 'K' about the occurrence. The question was whether it can be said that the statement of 'A' and 'B' made about the time of occurrence is corroborated 'by'K1. Held: In some exceptional cases even in the face of the 'denial of the witness who is said to have made the statement, the previous statement may be used as corroboration, but normally this should not be done. Niaz Vs. Slate (1960) 12 DLR (S.C) 289.

 

-Confessional statement against co-accused requires corroboration—When a confessional statement is intended to be utilized against a co-accused, but even then the nature of corroboration required is what has been indicated in the case of Ashraf Vs. Crown 8 DLR (FC) 105. State Vs. Badsha Khan (1958) 10 DLR 580 (1959) PLD (Dae.) 276.

 

—Courts should be very careful in making use of the confession of a co-accused as corroboration of an approver's testimony, and the probability of the confession having resulted from a previous concert should be excluded before it can be used for corroborating the approver. Rafiq Ahmed Vs. State (1959)11 DLR (SC) 91.

 

--Necessity of corroboration of evidence of interested persons. If the number of accused persons mentioned by interested persons is exaggerated, his (i.e. the interested person's) word, cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates his testimony. Niaz Vs. State (I960) 12 DLR (SC) 289.

 

-In cases where interested witness charges only one person with the commission of an offence, or where the number of persons whom he names does not exceed that which appear from independent evidence the

-It is not safe to act upon a retracted confession without corroboration. But when that corroboration is sought to be made by the evidence of a person whose evidence is unacceptable in law, it is no corroboration at all. Sabjan Bibi Vs. Stale (1957) 9 DLR 473.

 

-Confession of the approver recorded under sec. 164, Cr.P.C. is admissible for the purpose of corroborating the evidence given by him at the trial. The admissibility of the statement for the purpose of corroboration would depend upon whether it was made about the time when the offence took place or before legally competent authority. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123.

 

(Held by majority) : For corroboration of the approver's evidence it is not necessary to prove by independent evidence that the accused committed the crime, but it is enough if there is reliable evidence showing that that part of the approver's testimony which implicates the accused in the commission of the crime is true. Ishaq Vs. Crown (1955) 7 DLR (FQ37.

 

(Disagreeing from the above majority view): Evidence in corroboration must be by an independent testimony which affects the accused by connecting or tending to connect him with the offence. In other words, it must be evidence which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it. Ishaq Vn. Crown (1955) 7 DLR (FC) 37. (Page 53, Lrh col.)

 

-The evidence of an accomplice must be confirmed not only as to the circumstances of the crime but also as to the identity of the accused. .Ishaq Vs. Crown (1955) 7 DLR (FC) 37. (at page 58)

 

(In the above case the prosecution contended that the evidence regarding the recovery of the dead body by the accused's pointing out the spot where the dead body lay buried is sufficient corroboration of the approver's story that the accused participated in the murder.)

 

Held (By majority) : This contention must prevail. -(By minority; From the facts of accused's knowledge of the place where the dead body was buried, so much of the approver's statement is corroborated as it concerned with the transference of the body from the bed of the canal and nothing beyond that and, therefore, he can be held guilty under section 201, P.P.Code. Ishaq Vs. Crown 7 DLR (FC) 37.

 

Where accomplice is a giver of bribe

The rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is, the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence. In cases of this kind, a slight corroboration may be sufficient to induce the Court to rely upon his evidence. Abdul Bari Vs. Crown (1955) 7 DLR 457 (462,r-h Col.)

 

—Approver's statement.—The rule as to corroboration of approver's statement applies also when such statement is used against him at his own trial after forfeiture of pardon. 7 PLD (Lah.) 375.

 

—Entries in a book of accounts.-Where entries in a book of accounts (of a firm of partners) are sought to be relied on as corroborating as witness's deposition in Court, the book not being a private book, the entries made in such book can be accepted as corroborative evidence of the oral testimony of the witness. Makhan Lai Vs. Crown (1950) 2 DLR 223.

—The admissibility of the confessional statement for purposes of corroboration would depend upon whether it was made about the time when the offence took place or before any authority legally competent to investigate the fact. Ibrahmlm Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129)

 

--The rule as to corroboration of accomplice's evidence is that it is to be corroborated in material particular, (e.g., the persons mentioned by him participated in the offence).~It is not necessary that there must also be corroboration of that part of the story of the accomplice which he implicates himself. Israil Vs. State (1957) 9 DLR 416.

 

-Where the statement relates to two separate offences committed at different times, in pursuance of a conspiracy, the corroboration of the statement regarding one offence cannot be corroboration regarding the other. 2 PLD (Lah.) 507.

 

-If a Court believes a confession, judicial or extra-judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time Courts have always treated extra-judicial confessions as suspicious evidence and have emphasized the necessity of great care and caution in acting upon them in the absence of corroborative evidence. But a conviction based on an extra-judicial confession is not an illegality. Nawab Din Vs. Crown 2 PCR 282.

 

Retracted confession requires to be corroborated for conviction of a co-accused. State Vs. Aftabuddin (1956) 8 DLR 554 (559)

 

—Evidence of one accomplice docs not corroborate the evidence of another accomplice. Alt Sher Vs. Crown 7 PLD (BJ.) 1.

 

—Corroborative evidence essential to show that confession was not only made but also voluntarily made and true. Abdul Latif Vs. Crown 4 DLR (FC) 431 (at page 433).

 

—Conviction cannot be based on extra-judicial confession specially where it has been retracted unless such confession has been corroborated. Zahid Hossain Vs. Crown 6 DLR (WPC) 225 (at page 229)

—Support by corroboration is necessary in relation to an extra-judicial confession which has been retracted. Where the proof of making confession (retracted) is not free from blemish and the Court is still inclined to believe that the confession was made the necessary condition of such belief must be that there should be corroboration from independent sources which itself tends to implicate the accused. Qutba Vs. Crown (1954) 6 DLR (FC) 126 (at page 135, left-hand col.)

 

—Corroboration in regard to extra-judicial confession which has been retracted is necessary. Abdul Latif Vs. Crown (1952) 4 DLR (FC) 431 (at page 433 right-hand col.)

 

—Confession as against a maker himself is enough to support a conviction, even if not corroborated, if it is believed. State Vs. Aftabuddin (1956) 8 DLR 554 (at Page 559)

 

—Independent corroboration of the testimony of the approver that he himself took part in the crime is not necessary. Fazal Dad Vs. Crown (1955) 7 DLR (FC) 176, at Page 178 right-hand col.)

 

Held : (by majority)—Corroboration must be such as would remove the doubt that the accused has been falsely implicated. Ashraf Vs. Crown (1956) 8 DLR (FC) 105 (at page 107 right-hand col.)

 

—(Dissentient view) In the statement of the rule relating to corroboration in criminal cases it has never been held that corroborative evidence should itself be sufficient for conviction. Even in cases where- as a

matter of law corroboration is required, all that is insisted upon is that the corroborative evidence should tend to show that the witness's evidence that the accused took part in the crime is true. Ashraf Vs. Crown (1956) 8 DLR (FC) 105 (at page 107 right-hand col.)

 

—If conviction is based on the sole evidence of confession, it must be examined in toto; but when confession is partly corroborated by other witnesses, Court is right in accepting only such portion as is consistent with the prosecution story and rejecting the remainder. 6 PLD (Lah.) 309.

 

—Statement of an interested witness though not usually accepted without corroboration, yet it is not an inflexible rule. Corroboration docs not necessarily mean 'words' of an independent witness—Corroboration by an eye-witness is not necessarily of same probative value as in the case of an accomplice. Corroboration by circumstances may be inferred from the number of culprits as consistent with the kind of crime and the persons named were expected to join in attack—Practice of the Supreme Court as to interfere with appreciation of evidence by the High Court. Nazir Vs. State (1962) 14 DLR (SC) 159 = (1962) PLD SC 269

 

—Where corroborative evidence absent evidence of the victim woman may be relied on in circumstances as where such evidence can be relied.

The judge warned jury that they ought not to convict the prisoner upon the evidence of the boys unless it was corroborated in some material particular affecting the accused, but told them that the above mentioned letter afforded evidence which they would be entitled to find to be sufficient corroboration. The jury found the prisoner guilty. The Court of Criminal Appeal dismissed the Appeal. Lord Chief Justice of England delivering the Judgment of the Special Bench upheld the conviction. In this case the letter was considered to be sufficient corroboration. Abdul Quddus Vs. State (1983) 35 DLR 373.

 

Corroboration evidence—need not be direct connecting the accused with the crime-circumstantial evidence may serve the purpose— caution which court and jury should observe in case of corroborated evidence in sex offences. Abdul Quddus Vs. State. (1983) 35 DLR 373

 

Documents produced by the accused may in fact amount to a corroboration of the statement of the victim girl. Abdul Quddus Vs. Stale. (1983) 35 DLR 373

 

Held: Although the eye-witness narrated the occurrence to PW 1 a bit late, the evidence of PWI may be used as a corroborative evidence in the case. The State Vs. Badiqzzaman (1973) 25 DLR 41

 

Corroborative Evidence—When some prosecution witnesses alleged to be eye-witnesses of the actual occurrence are found not to have seen the occurrence, it is an error of law to place reliance on their evidence treating the same as corroborative evidence. Further, if there is no primary evidence to prove the actual incidence of the offence, it is a misnomer that there could be any corroborative evidence since nothing is established which might be the basis of a corroborative evidence. Mabasir All Vs. Stale, (1972) 24 DLR 103.

 

COURT

Court, not to assume role of a prosecutor.

Magistrate trying a criminal case acts as an arbiter between the parties. He is the Judge in the case and not the investigating agency. He is not to abandon high place of an impartial arbiter, and assume role of a prosecutor. Dr. M. Abdul Sami Vs. State (1962) 14 DLR (W.P.) 1 : (1962) PLD (Lah)271.

 

—Court and bad faith—Magistrate issuing in the first instance non-bailable warrants against plaintiff by way of show-cause notice for alleged offence under section 182 P.P.C.—Procedure adopted by Magistrate is extraordinary and is a proof of "badfaith." A.K. Khalid Vs. Khan Ghulam Qadir Khan (1962) 14 DLR (W.P) 25: (1962) PLD (Lah) 411.

\

—Courts, All Courts are subordinate to the High Court and the Law laid down by this court is binding on them. Mono Ranjan Dev Vs. State (1967) 19 DLR 522.

 

-Revenue Officer functioning under section 19(1) of E.B. State Acquisition and Tenancy Act (XXVIII of 1951) is not a Court. Md. Kafiluddin Vs. State (1962) 14 DLR 425.

 

-Revenue Officer holding enquiry or hearing an appeal in a mutation proceeding is not a Court. Malik Fateh Khan Vs. Nazibullah Khan (1957) 9 DLR (W.P) 40.

 

Court's duty—When considering crime of violence, a Court is well advised to examine the circumstances of the act, and its result, for the purpose of gauging the natural probabilities. A Majid Vs. Prov. of E. Pak.(1964) 16 DLR (SC) 127.

 

•r-Court cannot review its own judgment nor can alter it.-

Therc is abundant authority for the proposition that the Criminal Courts cannot review or alter its own judgment in criminal cases. Babulal Agarwala Vs. State (1961) 13 DLR 1,'(1961) PLD (DAC) 523.

 

—Courts right to put question to a witness for special purposes should not be exercised without restraint. Sayed Kanchan AH Vs. Shahjahan (1962) 14 DLR 573: (1962) PLD (Dae.) 192.

 

-Courts should not put pressure on the appearing accused to produce an absconding accused. Jagabondhu Bhowmic Vs. State (1960) 12 DLR 458: (1960) PLD (Dae.) 981.

 

—Court is not bound to restore possession to a convicted person merely because of his subsequent acquittal. Ambia Khalun Vs. Raja Mia (1977) 29 DLR 161.

 

—Court, its function--A Court of law eannot and should not usurp the functions of the Legislature. If an Act passed by the Legislature is not ultra vires the Court must give effect to its provisions unaffected by political considerations.

A Court's primary duty is to declare and interpret the law. If cannot, under colour of interpretation, alter or amend the law, however stringent the provisions of an Act might happen to be. Md. Hay at Vs. Crown (1951) 3 DLR (FC) 172 (185).

^

—Court's approach, jn regard to the entire evidence produced in the case—Possibility favouring the defence reacts in defence favour.

In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In such a case the accused is entitled to benefit of doubt. The State Vs. Mokshed AH Khan, (1968) 20 DLR 714.

 

—Court's duty to insist fipon presence of witnesses even though one is a police officer. In issuing process there cannot be any distinction between a public witness and that of a Police official.

 

In a case before the Magistrate both a public witness and the Investigating Officer remained absent. Warrant was issued to secure appearance of the former but no such coercive measure was taken in respect of the I.O.

 

Held: In issuing process there cannot be any distinction between a public witness and a Police official. As a matter of fact the latter has to be more careful in appearance in court. K.B. Ch. Gfiulam Ahmad Vs. G.L. Whitelay, (1970) 22 DLR (WP) 37.

 

—Court's Order—When a person ignoring a lower Court's order for appearance before that Court to answer certain charges made against him approaches the higher Court to quash the lower Court's order, the High Court will not in exercise of its discretionary power for quashing the lower Court's order, extend such relief to such person which will amount to encouraging defiance of lawful order of the subordinate Courts. Mr. A. K. Khan Vs. The Chairman, (1973) 25 DLR 192.

 

—Court's function is to see whether the accused is guilty of the offence he is charged with. Mizanur Rahman Zari Vs. State (1977) 29 DLR 167.

 

—"Court"- Essentials of what constitute a court. Idrish All Vs. State (1986) 38 DLR 270.

 

-Criminal Court set up under special statute can exercise powers envisaged in the code when the special statute expressly confers such power. Md. Sher Ali Vs. Spl. Tribunal (1977) 29 DLR 145.

 

—Court's function before it forms its conclusion. The duty of the court is to consider all the evidence of both parties and then to ascertain whether the plaintiffs had clear possession in the suit-lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.

 

-Court's inherent power to do real and substantial justice-—Court must step in to render, as far as it can, substantial justice where Uurs is no other specific legal remedy for a legal right and the inherent power should be exercised EX DEBITO JUSTICIAE to do real and substantial justice for the administration of which alone the Courts exist. Kari Palan Mia Vs. The State(1983)35 DLR ISA.

 

Court Martial—Court Martial set up under Army Act not subordinate to the High Court Division's jurisdiction. Jamil JHaq Vs. Bangladesh. (1982) 34 DLR 125.

 

-Appellate Division of the Supreme Court and Court Martial Jurisdiction of the Appellate Division vis-a-vis the Court Martial under Army Act. Badrul Haider Chowdhury, J. (Ruhul Islam, J. and Shahabuddin Ahmed, J. concurring).

 

Jurisdiction of Court has not been conferred by the Constitution over the decision of the. Court Martial convened under the Army Act unless the proceeding are coram non judice or malafide.  Court Martials are adhoc courts, out of the ambit of Civil Courts. -Court Martial if constituted legally, and jurisdictional error in procedure-Immune from writ jurisdiction.  Criminal Law (Amendment) Act (XIV of 1908)

 

S. 17-E-Court will refuse to interfere where the authority concerned can defeat the objective sought to be achieved by Court's order. Saiyid Abul A'laMaudoodi Vs. Govt. of W. Pak. (1965) 17 DLR (SC) 209.

Cr. Law (Amendment). Act, (XIX of 1948)

 

S. 2(a)--Power to appoint Special Judge vested in the Central Govt. so far as Chief Commissioners' provinces are concerned-Appropriate Government means Central Government. 7955 PLD (Bal) 6.

S. 3-Officer appointed as Special Judge in 1951-subsequent amendment of Act in 1953 does not nullify appointment, made in 1951. 1955 PLD (Bal) 6.

 

—Ousting of jurisdiction of ordinary courts by the Special Judge.

It is impossible to hold on the language of section 3 of the Act of 1948 that a Special Judge on his appointment ousts the jurisdiction of ordinary Courts in respect of offences which have not been investigated and sent up by the Special Police Establishment. 'Md: Sharif Vs. Crown (1956) 8 DLR (PC) 23.

 

Sees. 3-4--Jurisdiction of ordinary criminal courts to try the offences—not excluded. Crown Vs. Meher AH (1956) 8 DLR (FC) 47.

 

S. 3(2)(3)—Appointment of Special Judge-­By the same order which appointed him as Additional District Magistrate-Two appointments, however, published in gazette on different dates-­Appointment valid -Notification regarding re-appointment as Special Judge not mentioning the designation "Special Judge" but purporting to have been issued in exercise of powers under section 3(2) of Act-Appointment: held valid. 7955 PLD (Lah) 661.

 

S.   4—Sanction   for   prosecution,   after transfer of the case. The case having been transferred under sub­section (4) of section 4, no sanction under the Act of 1953 was necessary. Therefore, the prosecution could proceed on the basis of the sanction given under section 6 of the Act of 1947. Md. Sharif Vs. Crown (1956) 8 DLR (FC) 23.

 

-The plain meaning of sec. 4 of Act XIX of 1948 is that the Special Judge can have jurisdiction within certain territorial limits only in respect of cases which are sent up to him by the. Special Police Establishment. If, therefore, a case is not sent up to a Special Judge by the Special Police Establishment, his jurisdiction in respect of that offence does not at all commence. There is nothing in the Act of 1948 which expressly or by necessary implication lays down that the jurisdiction of the ordinary courts in respect of offences which they are competent to try under the general law is ousted by the appointment of a Special Judge. Md. Sharif Vs. Crown (1956) 8 DLR (FQ.23.

 

S. 4(2)--There being more Special Judges than one for a particular area, the trial of cases by the Sessions Judge without any Government direction specifying the particular Judge who shall hear the particular cases is valid in law. Asgar Ali alias Asgar Ali Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 24.

 

--Special Judges having concurrent jurisdiction. Where two Special Judges are appointed to try cases within the same area, both have concurrent jurisdiction to try a particular case. Nirode Chandra Vs. State (1957) 9 DLR 546.

 

—Ss.   4-5

S. 4(3)--Special Judge appointed under section 4(3) of Act XIX of 1948 is competent to try cases under Act (XL of 1958) when he fulfils two alternative qualifications laid down in section 3(2). Abdul Latif Vs. Stale (1961) 13 DLR (SC) 30 : 1961 PLD (SC) 49.

 

S. 4(4)--Sanction—proceedings in this case, when started did not require sanction—But when Act XL of 1958 came into force it made sanction necessary for prosecution of a public servant— Proceeding referred to above, will not be vitiated for absence of sanction. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142.

 

--'Stands transferred to the Court of Special Judge1.

A case under section 409 P.P.C. was initially tried by a Magistrate and the accused was convicted. On appeal the Chief Court of Appeal remitted the case for retrial, and meanwhile, the Criminal Law Amendment Act XXXVII of 1953 came into force.

Held: The case should go to the Court of Special Judge instead of to Magistrate under section 4(4) of the Act XIX of 1948, as amended. As soon as conviction was set aside by the Chief Court, the case became pending in the Court of the relevant Magistrate and therefore, must stand transferred to the Court of the Special Judge under section 4(4).

 

On such transfer fresh sanction not necessary by virtue of sec. 5(5). Gul Mohammad Vs. Crown (1956) 8 DLR (FC)50.

 

S. 4(7)--The words 'try other offences not so specified' permit the joinder of charges for offences not mentioned in Schedules 1 and 2 of the Criminal Law (Amendment) Act. Azizul Islam Chowdhury Vs. State (1957) 9 DLR 226.

 

S. 5(3)--The provisions of sub-section (3) of section 5 mean that the Special Judge may convict an accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offences specified in the said Schedule but he cannot be convicted for any offence which is not specified in Schedule. Abul Barkat Sharnamot Vs. State (1959) 11 DLR 173 : 1959 PLD (Dae) 617.

 

S. 5(4)(7)--Provisions of sub-sections (4) and (7) of section 5 are not repugnant to each other-Failure to comply with the requirement of sub­section (7) does not vitiate the trial inasmuch as the directions given therein are not mandatory. Abul Hussain Vs. Slate (1960) 12 DLR 110.

 

--Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. Abul Hussein Vs. State (1960) 12 DLR 110.

S. 5(5)--Sanction—Persons charged for attempting to give bribe to an officer under the Central Government. Sanction for prosecution accorded by an officer of the Provincial Government—Sanction invalid.

 

Sanction given by the District Magistrate was not proper and the trial held must be deemed' void

ab initio for want of adequate and valid sanction. Jahar Dull Vs. Stale (1959) 11 DLR 242 : 1959

PLD (Dae) 758.

 

-Sanction for prosecution-Officer concerned having already retired from scrvice-If validly can be given by the 'Appropriate Government'. For an officer who has retired, there is within the contemplation of the Criminal Law Amendment Act, no appropriate Government who can validly sanction his prosecution for an offence committed during the period of his service.

 

When the sanction for his prosecution under section 5(5) of the Pakistan Criminal Law Amendment Act, 1948 was granted the appellant was not in service, he having already retired and, therefore, there was no appropriate Government which could grant sanction for his prosecution such as it would make it a competent proceeding under the provisions of section 5(5) of the Act.

 

The definition of 'Appropriate Government' under this section of the Act is worded so as to give the clear impression that the determination of the 'Appropriate Government' for the purpose of grant of sanction to a prosecution can only be made in relation to a person who is actually serving. Hamed Golam Sadiq Vs. Pakistan (1961) 13 DLR (SC) 126:1960 PLD (SC) 351.

 

-Meaning of 'Appropriate Government'

The 'Appropriate' means the Central Government in cases where public servant is serving in connection with the affairs of the Federation and in other cases the Provincial Government. Zafar AH Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.

--Sanction-Not required in case of person other than a public servant (1956) PLD (Lah) 1051.

-Sanction filed after presentation of challan but before start of proceedings:—Trial not vitiated. 1957 PLD (Lah) 290.

--Sanction for prosecution granted under the belief that sanctioning authority was bound to accord sanction jf, in its opinion, there was aprima facie case—Sanction invalid. 1957PLD (Lah) 414.

 

-Proceeding against a public servant pending before Magistrate before 17th Nov., 1953,— previous sanction for prosecution not necessary, before or after, under section 5(5) Act XIX of 1948.

 

Sanction, in an appropriate case,,of the proper authority necessary under section 5(5) of Act XIX, 1948, for trial before Special Judge.

 

It is true that according to sub-section (5) of section 5 as it stood before the 17th November, 1953 in an appropriate case sanction of the Central Government and after the amendment of section 5 sanction of the appropriate Government has to be obtained before initiating any proceedings against a public servant for trial before a Special Judge but sub-section (5) of section 5 as amended by Act XXXVII of 1953 does not require that any fresh sanction must be obtained as soon as under sub­section (4) of section 4 a pending case in which no sanction was necessary before the amendment of 1953 stands transferred from an ordinary Criminal Court to the Court of a Special Judge.

 

No previous sanction is necessary as in this particular case the case of the accused before the 17th November; 1953 was pending before a First Class Magistrate and not before Special Judge. Khabiruddin Vs. Crown (1955) 7 DLR 166.

 

--Cases  relating to  an  offence--"Cases

relating to an offence" includes cases in which police has not yet put up a report —Sanction in such cases not necessary. The accused was first brought before a Magistrate on the 14th April, 1953, and until December, 1953, he was detained in custody. On the 12th April, 1954, the case was sent to the Special Judge under the Pakistan Criminal Law (Amendment) Act of 1948. The contention on behalf of the accused was that his prosecution must be deemed to have commenced from the date on which the charge-sheet was presented, namely, 15th December, 1953. On that date under the law in force, two requirements had to be fulfilled, viz., that his case should have been sent to the Special Judge, and there should have been sanction of the Central Government for his prosecution.

 

Held: Sub-section (4) of section 4 of the amended Act of 1948 is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegation follows from the use of the expression "cases relating to any offences" in the sub-section.

 

Consequently the proceedings before the Magistrate from the 14th April, 1953 up to the 17th November, 1953, must be regarded as constituting a case relating to the offence which has been alleged and was subsequently formally charged against him and by the further operation of sub-section (5) of section 5 of the same Act the necessity of sanction for the prosecution of the case was avoided. It was contended that as the accused was an employee under the Central Government, sanction for his prosecution was required under section 197 Criminal P.C.

 

Held:- Sub-section (5) of section 5 of the amended Act of 1948, which is clearly a 'special' Act, 'qua' the Criminal P.C. being the 'general' Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure 1898". Consequently, if it be held that the case was proceeding in proper form before the Special Judge nothing in the Criminal P. C. can be deemed to operate so as lo affect ils legality in [he relevant respect. Sycd Man tut dfl Vs. Crown (1956) (FC) tifi.

 

corresponding     provisions     of     Criminal Procedure  Code.

-Sanction accorded by the Supdl. of Police-Qbjcction as lo ils legality raised in Ihc High Court; Held: Trial in order.

 

Grievance wars made for the firM lime in ihc Hiyh Courl Ihal il not having been proved thai ihc S.P. who accorded sanction for ihc prosecution of ihc appellant was rtie appointing authority, the [rial was bad—

 

lldd:' Sanclion accorded will be treated as valid in law inasmuch as. there is presumption under ill 115. (c) of section 114 Evidence Act that if an official aei is proved to have been done, it will be presumed lo have been regularly done until ihc contrary is proved. Hirode Ctiandw Vs. Sane (J957) 9 DLR 546.

—Sanction for proseculirni-Prosccution of sctiion 17(1) of the Government of India At [ arc only directory and nol mandatory, Sanclion fur prosecution under section 5(5) of rhc Pak. Cr. Law Amendment ace. nol expressed lo be eiv&" J" ^c name of ihc Govcmoi-Ccncral and nol Sees. 5(51 & 200-Sjnclion by "appropriate Gcivcrnmcnl"--Parw;irLs assisting Rthbibilitalion Dejsarimcm do nol thereby become persons "serving in connection wild affairs of ihc FcdenUiorT—Provineial Covcrnmenl's sanction for prosecution enough. 7 PLD tiah) 66t.

 

-Sanction oiaincd on Illfi April, under section G(c) of Prevention of Corfuplion Acl (II of 1947)-Sanction of Ccnlral Government or of appropriate Govi^nmciil not necessary under Acl XIX of 1948-whether licforc or after ils amcndmcnl by Criminal l-aw Amendment Act (XXXVII of 195$), J956PLD (Lah) 151.

 

Second   Schedule-Clause   fh)

--"As 3iich"-Th£ word& "as such" in clause fb) of Iht Second Schedule mean Ihal ihc offence musi he one which is committed by the puhlic servant in Ihe purported discharge . I his duties. Zamal Abtfin Vs. State (1957) 9 DLR 640.

 

S,  6(2).   Presumption   under  Ihc Presnmpifon under Action 6, para 2 cannol be drawn unless it is proved that tnc money waa accepted a.s a gratillcalion for showing favour Md Yusuf Vs. Crown (1955) 7 DLR 302.

 

n linger Lhc sub-secuon will be made only when il is proved thai an accused had accepted yr.ni Heal ionTrivial amount alleged as paid: as fiTalification- -Court may decline to presume il as such Nurut !tu{1956} * DUt 562. ,S. A(5)-Scc under section 4(4) of lliis Act. State Vs. Saved Ahmed (19/52) 14 DLR tSQ 142-1962 FLDtfC) 277.

 

S. 9(l)"ScClion 9(1) doc^ not create any independent righl of appeal or revision apari frum whai has been provided in ihc Code of Cninmai PrOL-ediire --Appeal (or revision) will lie in accordance wjih (he provision? for appeal or revision under ihc Code of Criminal Procedure. Riutam AH Vs. State (1957) 9 DLff 424.

 

-No appeal will lie except a revision petition from an order made under section 514,Cr. P.Ccdc, under section 9(1) of the Criminal Law Amendment Acl, 1948. Rustarn Ah Vs. State (1957} 9 DLR 424.

--Provisions rt£iirrling appeal in the Criminal Procedure Cude applicable lo Judgment pushed hy Lhe Special Judge.

 

The provisions of Chapter XXXI iif the Cr P.C- relating 10 appeal^ arc fully applicable lo Ihc judgment delivered by ihc Special Judge under Ihe provisions of the Pakistan Criminal Law Amendment Acl of 194S- Trie provisions of Chapin XXXI authorise the Provincial (jnvcmmcn! to prefer an appeal aguinst an order of acquilral, Sections 5 and 417 of the Criminal Procedure Code read wilh section 9 of the Criminal Law Amendment Act, 1948, provide the machinery for the filing of an appeal in the High Court under the orders of the Provincial Government. S. M. K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (172 rt.-h. col. bottom).

 

S. ll(a)--Power of granting sanction—The Government can authorise any person to exercise the power of grant of sanction on its behalf. Zafar All Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.

S. 11(2) (a)-Rulc framed under the section to sanction prosecution of a private person acting jointly with a public servant valid. Asgar Ali alias Asgar AH Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 242.

 

S. 12—Effect of section 12 by the Amendment.

 

Section 12 was added to the Criminal Law (Amendment) Act of 1948 to declare that though the jurisdiction of the Special Judge in respect of other classes of public servants charged with certain offences was exclusive, nothing contained in that Act was to have the effect of excluding any jurisdiction which an authority exercised under any military, naval or air force law. M. S. K. Ibrat Vs. Commander-in-Chief (1956) 8 DLR (FC) 128: (32 n. h. col.)

 

Criminal Law (Amendment Act,  1953).

S. 4(4)--Evidence recorded by the Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226 : 1962 PLD 61.

 

Criminal Law (Amendment) Act (XL of 1958)

S. 2(»)~"Appropriate Government" has reference to the time of the commission of the offence. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142:1962 PLD (SC) 320.

 

S. 2(b)-Railway servant in respect of offence of cheating, not a public servant. For offences falling under section 419 and 420, P.P.C., a railway employee, in view of section 137(1) (4), of the Railways Act, is not a public servant within the meaning of section 21, P.P.C

 

Trial by Special Judge under Pakistan Criminal Law Amendment Act, of railway employee for charges under sections 419 and 420, as a public servant, without jurisdiction. Md. Halim Vs. State (1963) 15 DLR 282.

 

S. 2(b)— The two accuseds (who are railway employees) in the present case who have been charged with an offence of criminal breach of trust, shall have to be tried by Special Judge under the Criminal Law Amendment Act. Slate Vs. Ali Akhler (1966) 18 DLR 684.

 

S. 3(l)--Sessions Judge appointed Special Judge by Central Government—Notification is competent to try offences specified in the Schedule to the Prevention of Corruption Act, 1947 committed by a Central Government employee. Syed Imdad llussain Naqi Vs. State (1963) 15 DLR (WP) 66.

S. 4--Seclion confers jurisdiction on Special Judge for taking cognizance. A. S. S. Mohammad Ali Vs. The State (1983) 35 DLR (AD) 324.

 

Sees. 4 and 6—Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (e) of section 195 (I) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr. Law Amendment Act. Muslim Khan Vs. State (1986) 38 DLR (AD) 60.

 

—Ss.   4-6

S. 4(1)—Petitioner's name was shown in col. 2 of the Charge-sheet—On Public Prosecutor's application before the Special Judge before whom the case of another accused was pending that the petitioner should be brought up as an accused; the Judge asked for sanction for prosecution of the petitioner and the Supdt. of Police gave the sanction:- Held, such sanction not being in accordance with S. 4(1) of the Cr. Law Amendment Act, prosecution of the petitioner is illegal. Khorshed Alam Vs. The State (1975) 27DLR 111.

S. 4(l)"Special Judge can take cognizance of offence upon complaint or upon report in writing. Abul Mansur Ahmed vs. State (1961) 13 DLR 353: 1961 PLD (Dae.) 753.

 

S. 5(1), (6)--Offence of criminal breach of trust by public servant exclusively triable by the Special Judge with sanction by appropriate Government. All Ahmed Vs. Slate (1962) 14 DLR (SC) 81 .-(1962) PLD (SC) 102.

 

-Offences committed under section 409 P.P. Code, when the accused was a public servant-sanction accorded when he was not public servant-­offence under section 409 exclusively triable by the Special Judge and trial held is valid even though sanction in law may not be necessary. All Ahmed Vs. State (1962) 14 DLR (SC) 81 : (1962) PLD (SC) 102.

 

S. 5(1)--An offence u/s. 409 of the Penal Code is exclusively triable by a Special Judge on a written report by the Police or the Bureau of Anti-corruption. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.

 

-An Upazila Magistrate has no jurisdiction to take cognizance of an offence u/s. 409 of the Penal Code against public servant. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.

 

S. 5(2)—When the special Judge has acquitted an accused before framing charge—the accused can not be said to have "tried" and such acquittal is no bar to a second trial in respect of same offence. State Vs. Md. Shaft (1964) 16 DLR (WP) 30.

 

S. 5(6)—Provision of sub-section 6 of Section 5 of the Criminal Law Amendment Act contemplates power of the Special Judge to order investigation or further investigation by a Police Officer at any stage of the proceeding before cognizance has been taken and trial has begun. Kazi Nurul lloque Vs. The State (1983) 35 DLR 352.

 

S. 5(6)--Spccial Judge may direct further police investigation only when cognizance of the case not taken or before commencement of the trial. Kazi Nurul HaqUe Vs. State (1983) 35 DLR 352.

S. 5(7)--Joint trial of offence, can be held by Special Tribunal. Kazi Mozharul Iluq Vs. State (1981) 33 DLR 262.

 

 

Sees. 6 & 5(6)  Effect   of  both  the/ sections.

The combined effect of the provisions embodied in sections 6 and 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958 is that cases falling wilhin the ambit of the Pak. Cr. Law (Amendment) Act, 1958, arc to be tried as Sessions cases without the preliminary commitment procedure laid down in Chapter XVIII of the Code of Criminal Procedure. Stale Vs. Md. Shaft (1964) 16 DLR (WP) 30.

 

S. 6(1)—Special Judge appointed under the Act, when trying cases invested with the power of Sessions Judge acting without assessors or jury.

 

Section 6(1) of the Criminal Law Amendment Act (XL of 1958) in clear language says that the Court of Special Judge shall be deemed to be a Court of Session. Trying cases without the aid of Assessors or Jury, and that the provisions of the code of Criminal Procedure, except Chapter XXXVIII, shall apply to the proceedings of a Court of Special Judge. The Act in un-ambiguous language confers on the court of a Special Judge, the status of a court of sessions. Furthermore, except a minor chapter, whole of the Criminal Procedure Code applies to a proceedings of such a Court. The Court of a Special Judge is in terms of the said act a Criminal Court with the power and status of a Court of Sessions. Haider all Vs. Bangladesh (7976) 28 DLR (Apl. Division) 115.

 

S. 6(4)--Special Judge when trying on a charge under section 162 P.P.C. not competent to try the same accused under section 384 P.P.C. Monoranjan Dey Vs. State (1959) 11 DLR 172.

S. 6(5)--The Special Judge in this case held that cognizance of the accused, Abdur Rahim, a public servant, was taken on 22.5.75 without there being a sanction to prosecute him and also without writing by the Trial Judge to the Government for sanction and as such renders the prosecution of the accused illegal u/s. 6(5) of the Cr. Law Amendment Act, 1958. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

-Ratio decidendi of the cases decided before the amendment of Act (XL of 1958) reported in DLR volumes 9 and 10. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

--Sanction having been accorded before the framing of the charge there can be no defect in the procedure and trial can proceed according to law. Bangladesh Vs. Abdur Rahim (1983) 35 DLR 249.

-If the Special Judge fails to write to the appropriate authority for necessary sanction for prosecution, if however the sanction is accorded before the charge is framed, the proceeding will be in compliance of law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

S. 6(5) 1st. proviso-Under the 1st proviso lo s. 6(5), if the complaint or report is not accompanied by sanction, the Special Judge is to address the Govt. for sanction—This writing to the Govt. for sanction amounts to taking cognizance of the case or initiates a proceeding in connection with the prosecution of the case. Cases reported in (1957) 9 DLR 109 & (1958) 10 DLR 321 & 370 can no longer be treated as good law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

S. 6(5)-What sub-section (5) of s. 6 provides—Section 6(5) is as follows:

"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the Government shall be required for the prosecution of a public servant for

an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act.

Provided that in case where the complaint or report referred to in sub-section (I) of section 4 is not accompanied by such sanction the Special judge shall, immediately on receipt of the complaint or report, address, by letter, the Government, in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the Government, such sanction shall be deemed to have been duly accorded." A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.

-Prosecution of public servant-—Sanction for prosecution. If the complaint u/s 4 not accompanied by sanction the Special Judge required to write to the Govt for sanction—If it is not received within 60 days, the presumption is sanction has been accorded-In case of transferred case no further sanction necessary. A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.

-If the Special Judge has failed to write to the Govt. for sanction there is thus a breach of the provision of law and it can not be assumed that sanction has been given—In that case court will have no jurisdiction to try the case. A.S.S. Mohammad Ali Vs. State (1983) 35 DLR (AD) 324.

-It is essential that the Special Judge must write to the Govt. for sanction—If this condition is not fulfilled there can be no prosecution. A.S.S. Mohamad Ali Vs. State (1983) 35 DLR (AD) 324.

—No sanction for prosecution necessary if the public servant concerned ceased to be a public servant when the Court takes cognizance of the offence. Jamdher Khan Vs. The State (1975) 27 DLR (AD) 35.

.--Sanction needed only for prosecuting a public servant. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142 : (1962) PLD (SC) 320.

 

Sanction—Charge of misappropriation—fact which must be shown to have been placed before and considered by sanctioning authority. Where the order of the appropriate authority giving sanction for the prosecution of the accused did not show anywhere what papers were put up before him and what issues were involved, nor any extraneous evidence had been given in the case to prove that the sanctioning authority was made aware of the details and of the explanation given by the accused. Such a sanction was a mechanical sanction and is not valid. Abdul Awal Vs. State (1961) 13 DLR 397:1962 PLD (Dae) 623

—Accused was a public servant at the time when the offence alleged was committed, but ceased to be so at the time of the trial—prosecution not invalid.

 

Public servant committing offence of cheating under section 420 P.P.C.—Cannot be said to be acting in discharge of his official duty—No sanction for prosecution necessary. Slate Vs. Sikandar Khan (1963) 15 DLR (WP) 1

 

-Prosecution in respect of a person who has ceased to be a public servant when prosecution started, will require sanction for offence committed while acting as a public servant. Held: Although the offence is said to have been committed at a time when the appellant was in office as a Minister and although the prosecution was sought to be started at the time when he had ceased to be a Minister yet it was necessary for the institution of the prosecution against him that sanction from the appropriate Government should be obtained. Shaikh Mujibur Rahman Vs. State (1963) 15 DLR 549.

 

—Prosecution of a public servant no longer in service under this Act, if necessary. In case of a person who has ceased to be public servant there is no appropriate Government having control over him at the time of sanction. No sanction is called for such a person's prosecution and if a sanction was given it was a superfluity. Abul Monsur Ahmed Vs. State (1961) 13 DLR 353 : 1961 PLD (Dae) 753.

—Breach of the mandatory provision of sub­section (7) of section 6 does not vitiate,the trial unless the accused is prejudiced.

 

Failure to supply the accused with the statement of the witnesses one week before the commencement of the trial as required by section 6(7) of the Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is prejudiced, it will not warrant quashing a conviction. Muhbubur Rahman Vs. State (1960) 12 PLD 66: DLR (Dae) 344.

 

—Infringement of the mandatory provision of section 6(7) does not vitiate the trial unless the accused is prejudiced. Md. Hasan All Chowdhury Vs. State (1961) 13 DLR 581.

 

-"May act on the evidence already produced or recorded and continue the trial from the stage which the case has reached." Evidence recorded by the committing Magistrate before commitment of the accused to the Sessions Court cannot be used by the Special Judge as evidence for the disposal of the case pending before him. The proceedings before the committing Magistrate cannot be treated as the stage from which a trial can be continued inasmuch as no trial had commenced in court of the committing Magistrate. Shamsuddin Ahmed Vs. State (1959) 11 DLR 508 : 1960 PLD (Dae) 205.

 

-Sanction for prosecution of a person who was a public servant when the offence cognizable under the Act was committed but ceased to be so when the Court took cognizance of the offence—Not necessary. Nazir Hussain'Vs. State (1965) 17DLR (SC) 26.

 

Sees. 6(5) read with Sec. 5Sanction when the accused no longer public servant. The Special Judge was wrong in acquitting the accused on the ground that sanction for his prosecution was given when he was no longer in service inasmuch as in such a case the Special Judge's jurisdiction to try the case is not ousted. State Vs. Raja Khan (1964) 16 DLR(WP) III.

 

S. 8--Evidcnce recorded by Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226:(1962) PLD (SC) 61.

 

S.9--Expression "gain found to have been derived".

Section 9 of the Pak. Criminal Law (Amendment) Act, 1958, which requires that when any person charged before a Special Judge with an offence triable under the said Act is found guilty of the offence, the Special Judge shall, notwithstanding anything contained in any other law, whether or not he imposes a sentence of imprisonment, impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State Vs. Nazir Hossain (1964) 16 DLR(WP) 48.

 

When breach of trust is committed offence is complete—Refund does not make any difference.

Immediately the offence of criminal breach of trust is committed, the accused has derived a gain within the meaning of section 8 of the Pakistan Criminal Law (Amendment) Act. 1958, and the fact lhat he subsequently refunds the money being immaterial. State Vs. Nazir Hossain (1964) 16 DLR (WP)48

S. 10—Revision against the order of acquittal filed after period of limitation cannot be rejected on the sole ground of delay—Judge in disposing of petition entitled, nevertheless, to take into consideration factor of delay-Unexplained delay of more than a year—Interfce by the Court in revision refused. State Vs. Raja Khan (1964) 16 DLR (WP) 121.

 

Criminal Procedure Code (V of 1898)

S.ISpecial jurisdiction for trial of contempt of court—not exercised under provisions of Cr.P.C.—Cr.P.C not applicable lo proceedings in exercise of speical jurisdiction. G.S. Gideon Vs. State PLD 1963 (SC) 1

 

S. l(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-section (2), S. 5'Cr.P. Code. Chief Secy. Vs. Moslemuddin (1957) 9 DLR (SC) 20A

 

—The words "in the absence of any specific provision to the contrary" - What they refer to.

The words "in the absence of any specific, provision to the contrary " in section 1(2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be a specific provison in the special or local law that the Cr.P. Code will apply to the proceedings under the Act. If it is not so provided, Cr.P. Code will not apply. Gahena Vs. The State (1968) 20 DLR (WP) 271.

 

Sections 1(2) and 5(2)--Meaning of both these sections when they are read together : The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be governed by the procedure given in Cr.P.Codc unless the special or local law provides for a different procedure; and (c) that in respect to all other matters, covered by special or local law, the Cr.P.Code is not applicable, unless there is a specific provision to that effect. Gahena Vs. The Stale (1968) 20 DLR (WP) 271

 

S. l(2)--The effect of section 4(2) in the background of section 29 of the Code is that where the special law provides for trial of particular offences by particular courts they shall be so tried exclusively. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

S. 2(1)—Chittagong Hill tracts—Cr.P.C is applicable to area. State Vs. Ain Khan (1961) 13 DLR 911.

 

—S4(l)—"Investigation",   when deemed to   begin —Agreement   to   receive   bribe, and   actual   receipt    of   bribe—-are    two offences—Investigation  begins  at  different moments.

(Sajjad Ahmed,J.)—Investigation for an offence under section 4(1) of the Act starts, when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon as the police officer, takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allegation about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of "actual receipt of the bribe", even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence will start after the commission of that offence. Investigation follows the suspected commission of the offence and does not precede it. Ghulam Abbas Vs. The State (1968) 20 DLR (WP) 48.

 

S.4(b)Complaint—who may make. Any person who knows about the commission of an offence may make a complaint. Jassumal Vs. State PLD 1962(WP) Karachi 326

 

S. 4(b)"Investigation" what the term connotes. Under the Code of Criminal Procedure the word "Investigation" generally consists of the following steps: (I) proceeding to the spot (2) ascertainment of facts and circumstances of the case (3) discovery and the arrest of the suspected offender or offenders and (4) collection of evidence relating to the commission of the offence alleged which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing/if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a court for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under section 173 of the Criminal Procedure Code. Mr. Moshanaf Hossain Vs. State (1978) 30 DLR (SC). 112.

 

S.4(h)Complaint—Definition of—means allegation made orally or in writ ing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown .has committed an offence. Jagadish Chandra Vs. ' Joynarayan (1962) 14 DLR 198.

 

S.4(l)(h)--Compiaint does not require statement of facts beyond allegation that some person has committed, an offence. Ghulam Mohammed Vs. Ghulam Mohammed Khan 5 PLD (BJ.) 72.

 

S.4(l)(f)Revenue Officer conducting judicial proceedings—Not a Court—Not competent to punish for contempt. State Vs Muhammed Idris All Sikdar PLD 1965(SC) 677.

 

S. 4(l)(ra)--Officer acting under section 93A of the Dacca Town Improvement Act is not engaged in 'Judicial proceeding' within the meaning of section 4(l)(m) of the Code as contemplated by section 228, P.P.Code. Aziza Khalun Vs. The State (1967) 19 DLR 355.

 

S.4(l)(r)--"Any other person appointed with the permission of the Court"—such person must be duly appointed by the accused and the requisite permission of Court obtained to represent him. llabib Ullah Khan Vs. Md. Hossain 4 PLD (J & K) 38.

 

S. 4(1) cl. (t)--Public Prosecutor includes Assistant Public Prosecutor.

The definition of "Public Prosecutor" in clause (t) of section 4(1) of the Criminal Procedure Code includes Assistant Public Prosecutors and any other person who conducts a prosecution under the directions of the Public Prosecutor. Superintendent & Legal Remembrancer Vs. Aminul Huq & anr. (I960) 12 DLR 324—{I960) PLD (Dae) 783.

 

S.4(l)(S)--PoIice Lockup can be located only in police station —Detention of under Trial prisoner in C.I.A office—Illegal. State Vs. Mohd. YusufPLD 1965 (WP) Lahore 324.

 

S. 5(2)--The mode of trial dealing with offences of any other law, subject to any enactment for the time being in force, has been prescribed Under S. 5(2) of the Criminal Procedure Code. Delwar All Khan Vs. Sajedul Hague (1986) 38 DLR (AD) 52.

 

S.5(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-sec. (2), S.5, Cr.P.Code. Chief Secy. Vs. Moslemuddin 9 DLR (SC) 204.

 

6(1) and 10(4)--Court's consent, which is a requirement under section 494 Criminal Procedure Code, is not necessary for withdrawal of a case before a Special Judge for trial under Act LX of 1958 (Criminal Law Amendment Act). When the Public Prosecutor, who is appointed as such under Act of 1958, under the direction of the Government, files an application for withdrawal of such a case pending before the Special Judge, the latter has no alternative but then and there to record an order of withdrawal and stop further proceeding. The Investigating Authority has no say in this matter. Any interference by the Investigating Authority concerning the matter of withdrawal is u

Held: In issuing process there cannot be any distinction between a public witness and a Police official. As a matter of fact the latter has to be more careful in appearance in court. K.B. Ch. Gfiulam Ahmad Vs. G.L. Whitelay, (1970) 22 DLR (WP) 37.

 

—Court's Order—When a person ignoring a lower Court's order for appearance before that Court to answer certain charges made against him approaches the higher Court to quash the lower Court's order, the High Court will not in exercise of its discretionary power for quashing the lower Court's order, extend such relief to such person which will amount to encouraging defiance of lawful order of the subordinate Courts. Mr. A. K. Khan Vs. The Chairman, (1973) 25 DLR 192.

 

—Court's function is to see whether the accused is guilty of the offence he is charged with. Mizanur Rahman Zari Vs. State (1977) 29 DLR 167.

 

—"Court"- Essentials of what constitute a court. Idrish All Vs. State (1986) 38 DLR 270.

 

-Criminal Court set up under special statute can exercise powers envisaged in the code when the special statute expressly confers such power. Md. Sher Ali Vs. Spl. Tribunal (1977) 29 DLR 145.

 

—Court's function before it forms its conclusion. The duty of the court is to consider all the evidence of both parties and then to ascertain whether the plaintiffs had clear possession in the suit-lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.

 

-Court's inherent power to do real and substantial justice-—Court must step in to render, as far as it can, substantial justice where Uurs is no other specific legal remedy for a legal right and the inherent power should be exercised EX DEBITO JUSTICIAE to do real and substantial justice for the administration of which alone the Courts exist. Kari Palan Mia Vs. The State(1983)35 DLR ISA.

 

Court Martial—Court Martial set up under Army Act not subordinate to the High Court Division's jurisdiction. Jamil JHaq Vs. Bangladesh. (1982) 34 DLR 125.

 

-Appellate Division of the Supreme Court and Court Martial Jurisdiction of the Appellate Division vis-a-vis the Court Martial under Army Act. Badrul Haider Chowdhury, J. (Ruhul Islam, J. and Shahabuddin Ahmed, J. concurring).

 

Jurisdiction of Court has not been conferred by the Constitution over the decision of the. Court Martial convened under the Army Act unless the proceeding are coram non judice or malafide.  Court Martials are adhoc courts, out of the ambit of Civil Courts. -Court Martial if constituted legally, and jurisdictional error in procedure-Immune from writ jurisdiction.  Criminal Law (Amendment) Act (XIV of 1908)

 

S. 17-E-Court will refuse to interfere where the authority concerned can defeat the objective sought to be achieved by Court's order. Saiyid Abul A'laMaudoodi Vs. Govt. of W. Pak. (1965) 17 DLR (SC) 209.

Cr. Law (Amendment). Act, (XIX of 1948)

 

S. 2(a)--Power to appoint Special Judge vested in the Central Govt. so far as Chief Commissioners' provinces are concerned-Appropriate Government means Central Government. 7955 PLD (Bal) 6.

S. 3-Officer appointed as Special Judge in 1951-subsequent amendment of Act in 1953 does not nullify appointment, made in 1951. 1955 PLD (Bal) 6.

 

—Ousting of jurisdiction of ordinary courts by the Special Judge.

It is impossible to hold on the language of section 3 of the Act of 1948 that a Special Judge on his appointment ousts the jurisdiction of ordinary Courts in respect of offences which have not been investigated and sent up by the Special Police Establishment. 'Md: Sharif Vs. Crown (1956) 8 DLR (PC) 23.

 

Sees. 3-4--Jurisdiction of ordinary criminal courts to try the offences—not excluded. Crown Vs. Meher AH (1956) 8 DLR (FC) 47.

 

S. 3(2)(3)—Appointment of Special Judge-­By the same order which appointed him as Additional District Magistrate-Two appointments, however, published in gazette on different dates-­Appointment valid -Notification regarding re-appointment as Special Judge not mentioning the designation "Special Judge" but purporting to have been issued in exercise of powers under section 3(2) of Act-Appointment: held valid. 7955 PLD (Lah) 661.

 

S.   4—Sanction   for   prosecution,   after transfer of the case. The case having been transferred under sub­section (4) of section 4, no sanction under the Act of 1953 was necessary. Therefore, the prosecution could proceed on the basis of the sanction given under section 6 of the Act of 1947. Md. Sharif Vs. Crown (1956) 8 DLR (FC) 23.

 

-The plain meaning of sec. 4 of Act XIX of 1948 is that the Special Judge can have jurisdiction within certain territorial limits only in respect of cases which are sent up to him by the. Special Police Establishment. If, therefore, a case is not sent up to a Special Judge by the Special Police Establishment, his jurisdiction in respect of that offence does not at all commence. There is nothing in the Act of 1948 which expressly or by necessary implication lays down that the jurisdiction of the ordinary courts in respect of offences which they are competent to try under the general law is ousted by the appointment of a Special Judge. Md. Sharif Vs. Crown (1956) 8 DLR (FQ.23.

 

S. 4(2)--There being more Special Judges than one for a particular area, the trial of cases by the Sessions Judge without any Government direction specifying the particular Judge who shall hear the particular cases is valid in law. Asgar Ali alias Asgar Ali Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 24.

 

--Special Judges having concurrent jurisdiction. Where two Special Judges are appointed to try cases within the same area, both have concurrent jurisdiction to try a particular case. Nirode Chandra Vs. State (1957) 9 DLR 546.

 

—Ss.   4-5

S. 4(3)--Special Judge appointed under section 4(3) of Act XIX of 1948 is competent to try cases under Act (XL of 1958) when he fulfils two alternative qualifications laid down in section 3(2). Abdul Latif Vs. Stale (1961) 13 DLR (SC) 30 : 1961 PLD (SC) 49.

 

S. 4(4)--Sanction—proceedings in this case, when started did not require sanction—But when Act XL of 1958 came into force it made sanction necessary for prosecution of a public servant— Proceeding referred to above, will not be vitiated for absence of sanction. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142.

 

--'Stands transferred to the Court of Special Judge1.

A case under section 409 P.P.C. was initially tried by a Magistrate and the accused was convicted. On appeal the Chief Court of Appeal remitted the case for retrial, and meanwhile, the Criminal Law Amendment Act XXXVII of 1953 came into force.

Held: The case should go to the Court of Special Judge instead of to Magistrate under section 4(4) of the Act XIX of 1948, as amended. As soon as conviction was set aside by the Chief Court, the case became pending in the Court of the relevant Magistrate and therefore, must stand transferred to the Court of the Special Judge under section 4(4).

 

On such transfer fresh sanction not necessary by virtue of sec. 5(5). Gul Mohammad Vs. Crown (1956) 8 DLR (FC)50.

 

S. 4(7)--The words 'try other offences not so specified' permit the joinder of charges for offences not mentioned in Schedules 1 and 2 of the Criminal Law (Amendment) Act. Azizul Islam Chowdhury Vs. State (1957) 9 DLR 226.

 

S. 5(3)--The provisions of sub-section (3) of section 5 mean that the Special Judge may convict an accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offences specified in the said Schedule but he cannot be convicted for any offence which is not specified in Schedule. Abul Barkat Sharnamot Vs. State (1959) 11 DLR 173 : 1959 PLD (Dae) 617.

 

S. 5(4)(7)--Provisions of sub-sections (4) and (7) of section 5 are not repugnant to each other-Failure to comply with the requirement of sub­section (7) does not vitiate the trial inasmuch as the directions given therein are not mandatory. Abul Hussain Vs. Slate (1960) 12 DLR 110.

 

--Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. Abul Hussein Vs. State (1960) 12 DLR 110.

S. 5(5)--Sanction—Persons charged for attempting to give bribe to an officer under the Central Government. Sanction for prosecution accorded by an officer of the Provincial Government—Sanction invalid.

 

Sanction given by the District Magistrate was not proper and the trial held must be deemed' void

ab initio for want of adequate and valid sanction. Jahar Dull Vs. Stale (1959) 11 DLR 242 : 1959

PLD (Dae) 758.

 

-Sanction for prosecution-Officer concerned having already retired from scrvice-If validly can be given by the 'Appropriate Government'. For an officer who has retired, there is within the contemplation of the Criminal Law Amendment Act, no appropriate Government who can validly sanction his prosecution for an offence committed during the period of his service.

 

When the sanction for his prosecution under section 5(5) of the Pakistan Criminal Law Amendment Act, 1948 was granted the appellant was not in service, he having already retired and, therefore, there was no appropriate Government which could grant sanction for his prosecution such as it would make it a competent proceeding under the provisions of section 5(5) of the Act.

 

The definition of 'Appropriate Government' under this section of the Act is worded so as to give the clear impression that the determination of the 'Appropriate Government' for the purpose of grant of sanction to a prosecution can only be made in relation to a person who is actually serving. Hamed Golam Sadiq Vs. Pakistan (1961) 13 DLR (SC) 126:1960 PLD (SC) 351.

 

-Meaning of 'Appropriate Government'

The 'Appropriate' means the Central Government in cases where public servant is serving in connection with the affairs of the Federation and in other cases the Provincial Government. Zafar AH Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.

--Sanction-Not required in case of person other than a public servant (1956) PLD (Lah) 1051.

-Sanction filed after presentation of challan but before start of proceedings:—Trial not vitiated. 1957 PLD (Lah) 290.

--Sanction for prosecution granted under the belief that sanctioning authority was bound to accord sanction jf, in its opinion, there was aprima facie case—Sanction invalid. 1957PLD (Lah) 414.

 

-Proceeding against a public servant pending before Magistrate before 17th Nov., 1953,— previous sanction for prosecution not necessary, before or after, under section 5(5) Act XIX of 1948.

 

Sanction, in an appropriate case,,of the proper authority necessary under section 5(5) of Act XIX, 1948, for trial before Special Judge.

 

It is true that according to sub-section (5) of section 5 as it stood before the 17th November, 1953 in an appropriate case sanction of the Central Government and after the amendment of section 5 sanction of the appropriate Government has to be obtained before initiating any proceedings against a public servant for trial before a Special Judge but sub-section (5) of section 5 as amended by Act XXXVII of 1953 does not require that any fresh sanction must be obtained as soon as under sub­section (4) of section 4 a pending case in which no sanction was necessary before the amendment of 1953 stands transferred from an ordinary Criminal Court to the Court of a Special Judge.

 

No previous sanction is necessary as in this particular case the case of the accused before the 17th November; 1953 was pending before a First Class Magistrate and not before Special Judge. Khabiruddin Vs. Crown (1955) 7 DLR 166.

 

--Cases  relating to  an  offence--"Cases

relating to an offence" includes cases in which police has not yet put up a report —Sanction in such cases not necessary. The accused was first brought before a Magistrate on the 14th April, 1953, and until December, 1953, he was detained in custody. On the 12th April, 1954, the case was sent to the Special Judge under the Pakistan Criminal Law (Amendment) Act of 1948. The contention on behalf of the accused was that his prosecution must be deemed to have commenced from the date on which the charge-sheet was presented, namely, 15th December, 1953. On that date under the law in force, two requirements had to be fulfilled, viz., that his case should have been sent to the Special Judge, and there should have been sanction of the Central Government for his prosecution.

 

Held: Sub-section (4) of section 4 of the amended Act of 1948 is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegation follows from the use of the expression "cases relating to any offences" in the sub-section.

 

Consequently the proceedings before the Magistrate from the 14th April, 1953 up to the 17th November, 1953, must be regarded as constituting a case relating to the offence which has been alleged and was subsequently formally charged against him and by the further operation of sub-section (5) of section 5 of the same Act the necessity of sanction for the prosecution of the case was avoided. It was contended that as the accused was an employee under the Central Government, sanction for his prosecution was required under section 197 Criminal P.C.

 

Held:- Sub-section (5) of section 5 of the amended Act of 1948, which is clearly a 'special' Act, 'qua' the Criminal P.C. being the 'general' Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure 1898". Consequently, if it be held that the case was proceeding in proper form before the Special Judge nothing in the Criminal P. C. can be deemed to operate so as lo affect ils legality in [he relevant respect. Sycd Man tut dfl Vs. Crown (1956) (FC) tifi.

 

corresponding     provisions     of     Criminal Procedure  Code.

-Sanction accorded by the Supdl. of Police-Qbjcction as lo ils legality raised in Ihc High Court; Held: Trial in order.

 

Grievance wars made for the firM lime in ihc Hiyh Courl Ihal il not having been proved thai ihc S.P. who accorded sanction for ihc prosecution of ihc appellant was rtie appointing authority, the [rial was bad—

 

lldd:' Sanclion accorded will be treated as valid in law inasmuch as. there is presumption under ill 115. (c) of section 114 Evidence Act that if an official aei is proved to have been done, it will be presumed lo have been regularly done until ihc contrary is proved. Hirode Ctiandw Vs. Sane (J957) 9 DLR 546.

—Sanction for proseculirni-Prosccution of sctiion 17(1) of the Government of India At [ arc only directory and nol mandatory, Sanclion fur prosecution under section 5(5) of rhc Pak. Cr. Law Amendment ace. nol expressed lo be eiv&" J" ^c name of ihc Govcmoi-Ccncral and nol Sees. 5(51 & 200-Sjnclion by "appropriate Gcivcrnmcnl"--Parw;irLs assisting Rthbibilitalion Dejsarimcm do nol thereby become persons "serving in connection wild affairs of ihc FcdenUiorT—Provineial Covcrnmenl's sanction for prosecution enough. 7 PLD tiah) 66t.

 

-Sanction oiaincd on Illfi April, under section G(c) of Prevention of Corfuplion Acl (II of 1947)-Sanction of Ccnlral Government or of appropriate Govi^nmciil not necessary under Acl XIX of 1948-whether licforc or after ils amcndmcnl by Criminal l-aw Amendment Act (XXXVII of 195$), J956PLD (Lah) 151.

 

Second   Schedule-Clause   fh)

--"As 3iich"-Th£ word& "as such" in clause fb) of Iht Second Schedule mean Ihal ihc offence musi he one which is committed by the puhlic servant in Ihe purported discharge . I his duties. Zamal Abtfin Vs. State (1957) 9 DLR 640.

 

S,  6(2).   Presumption   under  Ihc Presnmpifon under Action 6, para 2 cannol be drawn unless it is proved that tnc money waa accepted a.s a gratillcalion for showing favour Md Yusuf Vs. Crown (1955) 7 DLR 302.

 

n linger Lhc sub-secuon will be made only when il is proved thai an accused had accepted yr.ni Heal ionTrivial amount alleged as paid: as fiTalification- -Court may decline to presume il as such Nurut !tu{1956} * DUt 562. ,S. A(5)-Scc under section 4(4) of lliis Act. State Vs. Saved Ahmed (19/52) 14 DLR tSQ 142-1962 FLDtfC) 277.

 

S. 9(l)"ScClion 9(1) doc^ not create any independent righl of appeal or revision apari frum whai has been provided in ihc Code of Cninmai PrOL-ediire --Appeal (or revision) will lie in accordance wjih (he provision? for appeal or revision under ihc Code of Criminal Procedure. Riutam AH Vs. State (1957) 9 DLff 424.

 

-No appeal will lie except a revision petition from an order made under section 514,Cr. P.Ccdc, under section 9(1) of the Criminal Law Amendment Acl, 1948. Rustarn Ah Vs. State (1957} 9 DLR 424.

--Provisions rt£iirrling appeal in the Criminal Procedure Cude applicable lo Judgment pushed hy Lhe Special Judge.

 

The provisions of Chapter XXXI iif the Cr P.C- relating 10 appeal^ arc fully applicable lo Ihc judgment delivered by ihc Special Judge under Ihe provisions of the Pakistan Criminal Law Amendment Acl of 194S- Trie provisions of Chapin XXXI authorise the Provincial (jnvcmmcn! to prefer an appeal aguinst an order of acquilral, Sections 5 and 417 of the Criminal Procedure Code read wilh section 9 of the Criminal Law Amendment Act, 1948, provide the machinery for the filing of an appeal in the High Court under the orders of the Provincial Government. S. M. K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (172 rt.-h. col. bottom).

 

S. ll(a)--Power of granting sanction—The Government can authorise any person to exercise the power of grant of sanction on its behalf. Zafar All Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.

S. 11(2) (a)-Rulc framed under the section to sanction prosecution of a private person acting jointly with a public servant valid. Asgar Ali alias Asgar AH Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 242.

 

S. 12—Effect of section 12 by the Amendment.

 

Section 12 was added to the Criminal Law (Amendment) Act of 1948 to declare that though the jurisdiction of the Special Judge in respect of other classes of public servants charged with certain offences was exclusive, nothing contained in that Act was to have the effect of excluding any jurisdiction which an authority exercised under any military, naval or air force law. M. S. K. Ibrat Vs. Commander-in-Chief (1956) 8 DLR (FC) 128: (32 n. h. col.)

 

Criminal Law (Amendment Act,  1953).

S. 4(4)--Evidence recorded by the Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226 : 1962 PLD 61.

 

Criminal Law (Amendment) Act (XL of 1958)

S. 2(»)~"Appropriate Government" has reference to the time of the commission of the offence. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142:1962 PLD (SC) 320.

 

S. 2(b)-Railway servant in respect of offence of cheating, not a public servant. For offences falling under section 419 and 420, P.P.C., a railway employee, in view of section 137(1) (4), of the Railways Act, is not a public servant within the meaning of section 21, P.P.C

 

Trial by Special Judge under Pakistan Criminal Law Amendment Act, of railway employee for charges under sections 419 and 420, as a public servant, without jurisdiction. Md. Halim Vs. State (1963) 15 DLR 282.

 

S. 2(b)— The two accuseds (who are railway employees) in the present case who have been charged with an offence of criminal breach of trust, shall have to be tried by Special Judge under the Criminal Law Amendment Act. Slate Vs. Ali Akhler (1966) 18 DLR 684.

 

S. 3(l)--Sessions Judge appointed Special Judge by Central Government—Notification is competent to try offences specified in the Schedule to the Prevention of Corruption Act, 1947 committed by a Central Government employee. Syed Imdad llussain Naqi Vs. State (1963) 15 DLR (WP) 66.

S. 4--Seclion confers jurisdiction on Special Judge for taking cognizance. A. S. S. Mohammad Ali Vs. The State (1983) 35 DLR (AD) 324.

 

Sees. 4 and 6—Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (e) of section 195 (I) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr. Law Amendment Act. Muslim Khan Vs. State (1986) 38 DLR (AD) 60.

 

—Ss.   4-6

S. 4(1)—Petitioner's name was shown in col. 2 of the Charge-sheet—On Public Prosecutor's application before the Special Judge before whom the case of another accused was pending that the petitioner should be brought up as an accused; the Judge asked for sanction for prosecution of the petitioner and the Supdt. of Police gave the sanction:- Held, such sanction not being in accordance with S. 4(1) of the Cr. Law Amendment Act, prosecution of the petitioner is illegal. Khorshed Alam Vs. The State (1975) 27DLR 111.

S. 4(l)"Special Judge can take cognizance of offence upon complaint or upon report in writing. Abul Mansur Ahmed vs. State (1961) 13 DLR 353: 1961 PLD (Dae.) 753.

 

S. 5(1), (6)--Offence of criminal breach of trust by public servant exclusively triable by the Special Judge with sanction by appropriate Government. All Ahmed Vs. Slate (1962) 14 DLR (SC) 81 .-(1962) PLD (SC) 102.

 

-Offences committed under section 409 P.P. Code, when the accused was a public servant-sanction accorded when he was not public servant-­offence under section 409 exclusively triable by the Special Judge and trial held is valid even though sanction in law may not be necessary. All Ahmed Vs. State (1962) 14 DLR (SC) 81 : (1962) PLD (SC) 102.

 

S. 5(1)--An offence u/s. 409 of the Penal Code is exclusively triable by a Special Judge on a written report by the Police or the Bureau of Anti-corruption. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.

 

-An Upazila Magistrate has no jurisdiction to take cognizance of an offence u/s. 409 of the Penal Code against public servant. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.

 

S. 5(2)—When the special Judge has acquitted an accused before framing charge—the accused can not be said to have "tried" and such acquittal is no bar to a second trial in respect of same offence. State Vs. Md. Shaft (1964) 16 DLR (WP) 30.

 

S. 5(6)—Provision of sub-section 6 of Section 5 of the Criminal Law Amendment Act contemplates power of the Special Judge to order investigation or further investigation by a Police Officer at any stage of the proceeding before cognizance has been taken and trial has begun. Kazi Nurul lloque Vs. The State (1983) 35 DLR 352.

 

S. 5(6)--Spccial Judge may direct further police investigation only when cognizance of the case not taken or before commencement of the trial. Kazi Nurul HaqUe Vs. State (1983) 35 DLR 352.

S. 5(7)--Joint trial of offence, can be held by Special Tribunal. Kazi Mozharul Iluq Vs. State (1981) 33 DLR 262.

 

 

Sees. 6 & 5(6)  Effect   of  both  the/ sections.

The combined effect of the provisions embodied in sections 6 and 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958 is that cases falling wilhin the ambit of the Pak. Cr. Law (Amendment) Act, 1958, arc to be tried as Sessions cases without the preliminary commitment procedure laid down in Chapter XVIII of the Code of Criminal Procedure. Stale Vs. Md. Shaft (1964) 16 DLR (WP) 30.

 

S. 6(1)—Special Judge appointed under the Act, when trying cases invested with the power of Sessions Judge acting without assessors or jury.

 

Section 6(1) of the Criminal Law Amendment Act (XL of 1958) in clear language says that the Court of Special Judge shall be deemed to be a Court of Session. Trying cases without the aid of Assessors or Jury, and that the provisions of the code of Criminal Procedure, except Chapter XXXVIII, shall apply to the proceedings of a Court of Special Judge. The Act in un-ambiguous language confers on the court of a Special Judge, the status of a court of sessions. Furthermore, except a minor chapter, whole of the Criminal Procedure Code applies to a proceedings of such a Court. The Court of a Special Judge is in terms of the said act a Criminal Court with the power and status of a Court of Sessions. Haider all Vs. Bangladesh (7976) 28 DLR (Apl. Division) 115.

 

S. 6(4)--Special Judge when trying on a charge under section 162 P.P.C. not competent to try the same accused under section 384 P.P.C. Monoranjan Dey Vs. State (1959) 11 DLR 172.

S. 6(5)--The Special Judge in this case held that cognizance of the accused, Abdur Rahim, a public servant, was taken on 22.5.75 without there being a sanction to prosecute him and also without writing by the Trial Judge to the Government for sanction and as such renders the prosecution of the accused illegal u/s. 6(5) of the Cr. Law Amendment Act, 1958. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

-Ratio decidendi of the cases decided before the amendment of Act (XL of 1958) reported in DLR volumes 9 and 10. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

--Sanction having been accorded before the framing of the charge there can be no defect in the procedure and trial can proceed according to law. Bangladesh Vs. Abdur Rahim (1983) 35 DLR 249.

-If the Special Judge fails to write to the appropriate authority for necessary sanction for prosecution, if however the sanction is accorded before the charge is framed, the proceeding will be in compliance of law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

S. 6(5) 1st. proviso-Under the 1st proviso lo s. 6(5), if the complaint or report is not accompanied by sanction, the Special Judge is to address the Govt. for sanction—This writing to the Govt. for sanction amounts to taking cognizance of the case or initiates a proceeding in connection with the prosecution of the case. Cases reported in (1957) 9 DLR 109 & (1958) 10 DLR 321 & 370 can no longer be treated as good law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.

S. 6(5)-What sub-section (5) of s. 6 provides—Section 6(5) is as follows:

"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the Government shall be required for the prosecution of a public servant for

an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act.

Provided that in case where the complaint or report referred to in sub-section (I) of section 4 is not accompanied by such sanction the Special judge shall, immediately on receipt of the complaint or report, address, by letter, the Government, in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the Government, such sanction shall be deemed to have been duly accorded." A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.

-Prosecution of public servant-—Sanction for prosecution. If the complaint u/s 4 not accompanied by sanction the Special Judge required to write to the Govt for sanction—If it is not received within 60 days, the presumption is sanction has been accorded-In case of transferred case no further sanction necessary. A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.

-If the Special Judge has failed to write to the Govt. for sanction there is thus a breach of the provision of law and it can not be assumed that sanction has been given—In that case court will have no jurisdiction to try the case. A.S.S. Mohammad Ali Vs. State (1983) 35 DLR (AD) 324.

-It is essential that the Special Judge must write to the Govt. for sanction—If this condition is not fulfilled there can be no prosecution. A.S.S. Mohamad Ali Vs. State (1983) 35 DLR (AD) 324.

—No sanction for prosecution necessary if the public servant concerned ceased to be a public servant when the Court takes cognizance of the offence. Jamdher Khan Vs. The State (1975) 27 DLR (AD) 35.

.--Sanction needed only for prosecuting a public servant. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142 : (1962) PLD (SC) 320.

 

Sanction—Charge of misappropriation—fact which must be shown to have been placed before and considered by sanctioning authority. Where the order of the appropriate authority giving sanction for the prosecution of the accused did not show anywhere what papers were put up before him and what issues were involved, nor any extraneous evidence had been given in the case to prove that the sanctioning authority was made aware of the details and of the explanation given by the accused. Such a sanction was a mechanical sanction and is not valid. Abdul Awal Vs. State (1961) 13 DLR 397:1962 PLD (Dae) 623

—Accused was a public servant at the time when the offence alleged was committed, but ceased to be so at the time of the trial—prosecution not invalid.

 

Public servant committing offence of cheating under section 420 P.P.C.—Cannot be said to be acting in discharge of his official duty—No sanction for prosecution necessary. Slate Vs. Sikandar Khan (1963) 15 DLR (WP) 1

 

-Prosecution in respect of a person who has ceased to be a public servant when prosecution started, will require sanction for offence committed while acting as a public servant. Held: Although the offence is said to have been committed at a time when the appellant was in office as a Minister and although the prosecution was sought to be started at the time when he had ceased to be a Minister yet it was necessary for the institution of the prosecution against him that sanction from the appropriate Government should be obtained. Shaikh Mujibur Rahman Vs. State (1963) 15 DLR 549.

 

—Prosecution of a public servant no longer in service under this Act, if necessary. In case of a person who has ceased to be public servant there is no appropriate Government having control over him at the time of sanction. No sanction is called for such a person's prosecution and if a sanction was given it was a superfluity. Abul Monsur Ahmed Vs. State (1961) 13 DLR 353 : 1961 PLD (Dae) 753.

—Breach of the mandatory provision of sub­section (7) of section 6 does not vitiate,the trial unless the accused is prejudiced.

 

Failure to supply the accused with the statement of the witnesses one week before the commencement of the trial as required by section 6(7) of the Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is prejudiced, it will not warrant quashing a conviction. Muhbubur Rahman Vs. State (1960) 12 PLD 66: DLR (Dae) 344.

 

—Infringement of the mandatory provision of section 6(7) does not vitiate the trial unless the accused is prejudiced. Md. Hasan All Chowdhury Vs. State (1961) 13 DLR 581.

 

-"May act on the evidence already produced or recorded and continue the trial from the stage which the case has reached." Evidence recorded by the committing Magistrate before commitment of the accused to the Sessions Court cannot be used by the Special Judge as evidence for the disposal of the case pending before him. The proceedings before the committing Magistrate cannot be treated as the stage from which a trial can be continued inasmuch as no trial had commenced in court of the committing Magistrate. Shamsuddin Ahmed Vs. State (1959) 11 DLR 508 : 1960 PLD (Dae) 205.

 

-Sanction for prosecution of a person who was a public servant when the offence cognizable under the Act was committed but ceased to be so when the Court took cognizance of the offence—Not necessary. Nazir Hussain'Vs. State (1965) 17DLR (SC) 26.

 

Sees. 6(5) read with Sec. 5Sanction when the accused no longer public servant. The Special Judge was wrong in acquitting the accused on the ground that sanction for his prosecution was given when he was no longer in service inasmuch as in such a case the Special Judge's jurisdiction to try the case is not ousted. State Vs. Raja Khan (1964) 16 DLR(WP) III.

 

S. 8--Evidcnce recorded by Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226:(1962) PLD (SC) 61.

 

S.9--Expression "gain found to have been derived".

Section 9 of the Pak. Criminal Law (Amendment) Act, 1958, which requires that when any person charged before a Special Judge with an offence triable under the said Act is found guilty of the offence, the Special Judge shall, notwithstanding anything contained in any other law, whether or not he imposes a sentence of imprisonment, impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State Vs. Nazir Hossain (1964) 16 DLR(WP) 48.

 

When breach of trust is committed offence is complete—Refund does not make any difference.

Immediately the offence of criminal breach of trust is committed, the accused has derived a gain within the meaning of section 8 of the Pakistan Criminal Law (Amendment) Act. 1958, and the fact lhat he subsequently refunds the money being immaterial. State Vs. Nazir Hossain (1964) 16 DLR (WP)48

S. 10—Revision against the order of acquittal filed after period of limitation cannot be rejected on the sole ground of delay—Judge in disposing of petition entitled, nevertheless, to take into consideration factor of delay-Unexplained delay of more than a year—Interfce by the Court in revision refused. State Vs. Raja Khan (1964) 16 DLR (WP) 121.

 

Criminal Procedure Code (V of 1898)

S.ISpecial jurisdiction for trial of contempt of court—not exercised under provisions of Cr.P.C.—Cr.P.C not applicable lo proceedings in exercise of speical jurisdiction. G.S. Gideon Vs. State PLD 1963 (SC) 1

 

S. l(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-section (2), S. 5'Cr.P. Code. Chief Secy. Vs. Moslemuddin (1957) 9 DLR (SC) 20A

 

—The words "in the absence of any specific provision to the contrary" - What they refer to.

The words "in the absence of any specific, provision to the contrary " in section 1(2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be a specific provison in the special or local law that the Cr.P. Code will apply to the proceedings under the Act. If it is not so provided, Cr.P. Code will not apply. Gahena Vs. The State (1968) 20 DLR (WP) 271.

 

Sections 1(2) and 5(2)--Meaning of both these sections when they are read together : The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be governed by the procedure given in Cr.P.Codc unless the special or local law provides for a different procedure; and (c) that in respect to all other matters, covered by special or local law, the Cr.P.Code is not applicable, unless there is a specific provision to that effect. Gahena Vs. The Stale (1968) 20 DLR (WP) 271

 

S. l(2)--The effect of section 4(2) in the background of section 29 of the Code is that where the special law provides for trial of particular offences by particular courts they shall be so tried exclusively. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

S. 2(1)—Chittagong Hill tracts—Cr.P.C is applicable to area. State Vs. Ain Khan (1961) 13 DLR 911.

 

—S4(l)—"Investigation",   when deemed to   begin —Agreement   to   receive   bribe, and   actual   receipt    of   bribe—-are    two offences—Investigation  begins  at  different moments.

(Sajjad Ahmed,J.)—Investigation for an offence under section 4(1) of the Act starts, when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon as the police officer, takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allegation about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of "actual receipt of the bribe", even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence will start after the commission of that offence. Investigation follows the suspected commission of the offence and does not precede it. Ghulam Abbas Vs. The State (1968) 20 DLR (WP) 48.

 

S.4(b)Complaint—who may make. Any person who knows about the commission of an offence may make a complaint. Jassumal Vs. State PLD 1962(WP) Karachi 326

 

S. 4(b)"Investigation" what the term connotes. Under the Code of Criminal Procedure the word "Investigation" generally consists of the following steps: (I) proceeding to the spot (2) ascertainment of facts and circumstances of the case (3) discovery and the arrest of the suspected offender or offenders and (4) collection of evidence relating to the commission of the offence alleged which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing/if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a court for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under section 173 of the Criminal Procedure Code. Mr. Moshanaf Hossain Vs. State (1978) 30 DLR (SC). 112.

 

S.4(h)Complaint—Definition of—means allegation made orally or in writ ing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown .has committed an offence. Jagadish Chandra Vs. ' Joynarayan (1962) 14 DLR 198.

 

S.4(l)(h)--Compiaint does not require statement of facts beyond allegation that some person has committed, an offence. Ghulam Mohammed Vs. Ghulam Mohammed Khan 5 PLD (BJ.) 72.

 

S.4(l)(f)Revenue Officer conducting judicial proceedings—Not a Court—Not competent to punish for contempt. State Vs Muhammed Idris All Sikdar PLD 1965(SC) 677.

 

S. 4(l)(ra)--Officer acting under section 93A of the Dacca Town Improvement Act is not engaged in 'Judicial proceeding' within the meaning of section 4(l)(m) of the Code as contemplated by section 228, P.P.Code. Aziza Khalun Vs. The State (1967) 19 DLR 355.

 

S.4(l)(r)--"Any other person appointed with the permission of the Court"—such person must be duly appointed by the accused and the requisite permission of Court obtained to represent him. llabib Ullah Khan Vs. Md. Hossain 4 PLD (J & K) 38.

 

S. 4(1) cl. (t)--Public Prosecutor includes Assistant Public Prosecutor.

The definition of "Public Prosecutor" in clause (t) of section 4(1) of the Criminal Procedure Code includes Assistant Public Prosecutors and any other person who conducts a prosecution under the directions of the Public Prosecutor. Superintendent & Legal Remembrancer Vs. Aminul Huq & anr. (I960) 12 DLR 324—{I960) PLD (Dae) 783.

 

S.4(l)(S)--PoIice Lockup can be located only in police station —Detention of under Trial prisoner in C.I.A office—Illegal. State Vs. Mohd. YusufPLD 1965 (WP) Lahore 324.

 

S. 5(2)--The mode of trial dealing with offences of any other law, subject to any enactment for the time being in force, has been prescribed Under S. 5(2) of the Criminal Procedure Code. Delwar All Khan Vs. Sajedul Hague (1986) 38 DLR (AD) 52.

 

S.5(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-sec. (2), S.5, Cr.P.Code. Chief Secy. Vs. Moslemuddin 9 DLR (SC) 204.

 

6(1) and 10(4)--Court's consent, which is a requirement under section 494 Criminal Procedure Code, is not necessary for withdrawal of a case before a Special Judge for trial under Act LX of 1958 (Criminal Law Amendment Act). When the Public Prosecutor, who is appointed as such under Act of 1958, under the direction of the Government, files an application for withdrawal of such a case pending before the Special Judge, the latter has no alternative but then and there to record an order of withdrawal and stop further proceeding. The Investigating Authority has no say in this matter. Any interference by the Investigating Authority concerning the matter of withdrawal is u

unwarranted. Taskinuddin Talukdar Vs. The Slate, (1973) 25 DLR 174.

9(3)--All Assistant Session Judges are deemed to be Addl. Sessions Judges when a District Magistrate, Addl. District Magistrate or any first class Magistrate is specially empowered to try any offence. Asstt. Sessions Judges deemed to be Addl. SessionsJudge may exercise powers and discharge functions of the Addl. ScssiomJudge subject to any limitation as may be prescribed. Nazir Ahmed Vs. Yonus Miah (1984) 36 DLR 96.

 

—Asslt. SessionsJudge deemed to be appointed Addl. SessionsJudge may hear appeals, revisions and references when such cases are transferred to him by, the SessionsJudge.

 

An Assistant SessionsJudge deemed to have been appointed as Addl. SessionsJudge under the proviso to section 9(3) Cr.P.C. by legal fiction is to be treated as an Addl. SessionsJudge not only for the purposes of trial of sessions cases but also for the purposes of hearing appeals, revisions and references if they are made over or transferred to him (by the Sessions Judge). Adbul Latif Vs. Nurjahan Begum (1985) 37 DLR 204.

 

S.9(3)--Assistant Sessions Judge became Additional Sessions Judge in the course of the trial. Conviction by the Judge must be regarded as a conviction by the Additional Sessions Judge from which an appeal lay to the High Court. Askar Ali Vs. State (1959) 11 DLR (SC) 226 (1959) IX PLR (SC) 1378 (1959) PLD (SC) 251.

 

-As against a judgement passed by Asstt. Sessions Judge deemed Addl. Sessions Judge convicting and sentencing a -person in any manner, if the High Court Division is to entertain appeal against such conviction u/s.410, section 408 would become redundant. Under section 408 as against a conviction inflicted by Asstt. Sessions Judge appeal will lie to the Sessions Judge, but if the conviction exceeds 5 years, clause (b) of proviso to section.408 provides that in that case appeal will lie to the'High Court Divsi on and not to the Sessions Judge. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362.

S.   9(3)

 

S.29C--(newly) added by Ordinance 24 of 1982 on 21.8.82). [All Asst. Sessions Judges are now deemed Asstt. Session Judge, and may pass any sentence excepting death sentence. The decision of this question (referred to in para 1 of the Judgment) has immense public importance in view of the fact (hat a new section 29C has been inserted in the Criminal Procedure Code by Ordinance No.XXIV of 1982 empowering all First Class Magistrates to try all offences not punishable with imprisonment exceeding 10 years. All Assistant Sessions Judges all over the country are now deemed to have been appointed as Additional Sessions Judges with all the powers thereof excepting sentence of death. Md. Mustafa Mandal Vs. State (1983)35 DLR 362.

 

Asstt. Sessions Judges becomes Addl. Sessions Judges as soon as any First Class Magistrate is empowered to try offences as provided in new sec. 29C.

 

Sub-section. (4) newly added says that under-the proviso to S.9(3) Asst. Sessions Judge may pass any sentence excepting one of death. Md. Mustafa Mondal Vs. State (1983) 35 DLR 362.

 

S.10--Additional District Magistrate can lawfully perform functions of the District Magistrate in authenticating a declaration. Waliul Bari Chowdhury Vs. District Magistrate, Kushlia (1986) 38 DLR (AD) 256.

 

S. 10 (2)Trial of a case transferred to a Magistrate under section 3(54) of the Bengal Municipal Act by a Magistrate who is not the District Magistrate is without jurisdiction and to such case sec. 10(2) of Cr.P.C. is not applicable. Abdul Kader Vs. Chairman Dacca Municipality (1958) 10 DLR 205.

--Powers conferred u/s 10(2)-May be exercised even after transfer to another post in same local area. Tariq Mahmood Vs. Slate PLD 1962 Lahore 939.

 

Section l2--District Magistrate (now the Deputy Commissioner) is competent to alter the local limits of a police-station or a subdivision with the concurrence of the Provincial Government. Abdul Hamid Howlader Vs. The Province of East Pakistan, (1972) 24 DLR 142.

 

—Jurisdiction of Magistrate—Extends to whole district—May be determined by order of D.M. within the District. Basher Ahmed Vs. Chief Commissioner PLD 1962 (WP) Karachi 249.

 

Ss.-14, 17«Special Magistrate—Subordinate to D.M. Appeal from order of Special Magistrate forfeiting bond lies to D.M. Mansha Mohd. Khan Vs. State PLD 1963 AzadJ & K 36.

 

S. 17--First Class Magistrates are subordinate to the District Magistrate even in respect of judicial functions. Anwar Mahmud & ors Vs. Rashidui Zatnan (1959) 11 DLR (WP) 77.

 

S. 17(2)The subordination referred to in section 17(2) cannot possibly mean that the Sub-divisional Magistrate thereby acquired the powers of himself revising the orders of another Magisirate of the First Class or of sitting on appeal over the lattcr's order. The only practical effect of this subordination is to make such a Magistrate an inferior criminal court within the meaning of sec. 435(1) Cr.P.C. Abdul Kader Vs. Crown (1955) 1 DLR 637(642)

 

S.17(4)--Applies only to Sessions Judges and not to Additional SessiomJudges—Since on the day of the order complained of, the Sessions Judge was present at his headquarters the Additional Sessions Judge had no jurisdiction to entrust his urgent business during his absence to the District Magistrate under that provision. Mupal Vs. Ghulam 5 DLR (WPC) 86.

 

S.26--A Special Tribunal constituted under section 26 of the Special Powers Act, upon a charge submitted through a report in writing by an appropriate Police Officer under section 27 of the Said Act, can try exclusively only such offences as are mentioned in the Schedule to the Act. Tamiz "Miah Vs. Govt. of the People's Republic of Bangladesh. (1981) 33 DLR 203.

 

--Joinder of scheduled and non-scheduled offences is an illegality. Joinder of scheduled and non-scheduled offences was illegal and the trial by the Special Tribunal for both scheduled and non-scheduled offences was also without any lawful authority. Tamiz Miah Vs. Govt. of the People's Republic of Bangladesh. (1981) 33 DLR 203.

 

S. 28--Court mentioned in S.28 is to try all offences mentioned in the Penal Code—Special Courts created under a Special Law are to have exclusive jurisdiction to try cases mentioned in the Special Law. Tamiz Miah Vs. Govt of the People's Republic of Bangladesh (1981) 33 DLR 203.

 

--Court mentioned in s.28 is to try all offences mentioned in the Penal Code — Special Courts created under a special law are to have exclusive jurisdiction to try cases mentioned in the special law. Tamiz Miah Vs. Govt of the People's Republic of Bangladesh (1981) 33 DLR 203.

 

S.28 read with S. 30--First Class Magistrate with powers u/s 30 can try an offence u/s 304 P.P.C. According to sec. 28 a case under section 304 P.P.C. is triable by the court of sessions but section 28 is to be read, as the words "subject to other provisions of the Code" indicate, along with sec.30, and the effect of reading them together is that an offence under section 304, P.P.C. becomes triable by a Magistrate of the First Class invested with powers under section 30 Cr.P.Code. Ghulam Ahmed Vs. State (1958) 10 DLR(WP)78.

Sec. 29--Magistrate's jurisdiction to try an offence-When the maximum sentence prescribed exceeds the limit of his power but the sentence imposed by the Magistrate which is within his jurisdiction — Trial legal. Abu Suflan Vs. Nurjahan Begum (1966) 18 DLR 230.

 

S.29(l)--Special Tribunal constituted under the Special Powers Act is a court within the meaning of S. 29(1). Such a court is to exercise its power as are specially conferred under the Statute. Md. Sher All Vs. Special Tribunal (1977) 29 DLR.

 

S. 29C--When the Asstt. Sessions Judges are to be deemed to become Addl. Sessions Judges. As soon as the District Magistrate, Additional District Magistrate or any Magistrate of the 1st Class is specially empowered u/s. 29C of the Code of Criminal Procedure to try any offence in a District, the proviso to sub-section (3) of section 9 Cr.P.C. enacts that all Assistant Sessions Judges of the Sessions Division within which the District is situate shall be deemed to have been appointed as Additional Sessions Judge of that Division.

 

Immediately after the empowering of the District Magistrate or any Magistrate of 1st. Class u/s. 29C of the Code of Criminal Procedure the statutory fiction is to be resorted to and it should be carried to its logical conclusion by giving full effect to the legal fiction that an Assistant Sessions Judge in that Sessions Division shall be deemed as if he has been appointed as Additional Sessions Judge for all purposes, namely for trying sessions cases as well as for hearing and disposing of appeals, references and revisions transferred to him by the Sessions Judge as the deeming proviso does not exclude the latter from the jurisdiction of Assistant Sessions Judge deemed to be Additional Sessions Judge. The only limitation that has been put by the law-making authority on the power of sentence by such an Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge is by adding sub-section (4) to section 31 Cr.P.C.

 

The Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge under the provison to sub-section (3) of section 9 Cr.P.C. has rightly exercised his jurisdiction by hearing and disposing of the revision in exercise of his power u/s. 439A of the Code of Criminal Procedure when the said case was transferred to him by the Sessions Judge under sub-section (3) of section 439A Cr.P.C. deeming him or treating him to be an Additional Sessions Judge. Abu Taker Vs. Msl. Razia Begum. (1985) 37 DLR 18.

 

S. 29C (newly added by Ordinance 24 of 1982, on 21.8.82) The decision of this question (referred to in Para 1 of the judgment) has immense public importance in view of the fact that a new section 29C has been inserted in the Criminal Procedure Code by Ordinance No. XXIV of 1982 empowering all 1st Class Magistrates to try all offences not punishable with imprisonment exceeding 10 years. All Assistant Sessions Judges all over the country are now deemed to have been appointed as Additional Sessions Judges with all the powers thereof excepting sentence of death. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362

 

Proviso to sub-sec. (3) of s. 9 and sections 408 and 410.

As against a judgment passed by Asst. Sessions Judge deemed Addl. Sessions Judge convicting and sentencing a person in any manner, if the High Court Division is to entertain appeal against such conviction u/s. 410, section 408 would become redundant. Under section 408 as against a conviction inflicted by Asstt. Sessions Judge appeal will lie to the Sessions Judge, but if the conviction exceeds 5 years, clause (b) of proviso to section 408 provides that in that case appeal will lie to the High Court Division and not to the Sessions Judge. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362

 

S. 29C--Asstt. Sessions Judges become Addl. Sessions Judges as soon as any first class Magistrate is empowered to try offences as provided in new sec. 29C.

 

Sub.s(4) newly added says that under the proviso to. s 9(3) Asstt. Sessions Judge may pass any sentence excepting one of death. Md. Mustafa Mandal Vs. State. (1983) 35 DLR 362

 

—Particular offence carrying a sentence of punishment which exceeds-the limitof power which the Trying Magistrate could under law impose-Trial in respect of the offence not affected when the Magistrate imposes a sentence within the limits of his power. The limit on the power of awarding punishment does not affect the'competence of a Court to try the case. The Magistrate in the present case though not empowered under section 30, Criminal Procedure Code is however duly competent to try the case but all that he cannot do is to impose a sentence which exceeds the limit of his powers in awarding sentence. In the present case, the sentence imposed is within the powers of a Magistrate of the First Class in accordance with the third Schedule to the Criminal Procedure Code. Noor Hossain Vs. State (1966) 18 DLR'(SC) 176.

 

--S.30Offence triable by Magistrate with S.30-{5owers of session Judge—Magistrate may commit case only for adequate reasons—offence triable by Sessions judge exclusively—No discretion as to commitment vests in Magistrate. State Vs. Ghulam Qadir PLD 1964(WP) Pesh 53.

 

S.30--Magistrate's power to impose penalties derived under section 193-B Sea Customs Act,is quite different from that derived under section 30 of the Cr.P.Code. A Magistrate trying a case falling in item 8(a) of section 167 Sea Customs Act is not acting under section 30 of the Cr.P.Code and thus proviso(a) to section 408, CrP.Codc not attracted in such a case.

 

In the case of a Magistrate specially empowered under section 193-B of the Sea Customs Act, his powers to impose penalties are not as wide as lhat of a Magistrate specially empowered under section 30 of the Code of Criminal Procedure. Section 193-B of the Sea Customs Act and" section 30 of the Code of Criminal Procedure stand absolutely on different footings; they are mutually exclusive and operate independently.

 

When a trying Magistrate is not empowered" under section 30 of the Code of Criminal Procedure, the proviso (b) to section 408 of the Code is not attracted there. Alok Kumar Mitra and others. Vs. The State (1969) 21 DLR 1.

 

-—Trial begun by 1st class Magistrate-judgment announced by Magistrate with S. 30 powers—If sentence for more than 2 years may be passed . Abdul Rashid Vs. State PLD (1961) (WP) Lahore 990.

 

S. 31(4)Assistant Sessions Judges in view of s.31(4) can not pass a sentence of death—Except as regard the limitation in respect of sentence of punishment, the power of the Addl. Sessions Judge and those of Sessions Judgs Asstt.are equal. Nazir Ahmed Vs. Yonus.Meah. (1984) 36 DLR 93.

 

- If appeal against the judgment of Addl. Sessions Judges deemed as Addl. Sessions Judge is , to be filed in the High Court Division, instead of before the Sessions Judges, problem created by too many filings in the High Court Division is not the concern of a court of law. Nazir Ahmed Vs. Yonus Meah. (1984) 36 DLR 93.

 

S. 31(4) read with Chapters XXIII, XXXI & XXXIII. By adding a new sub-section (4) to section 31 which is in Chapter III of the Code of Criminal Procedure regarding powers of courts the lawmaking authority merely provided that "an Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge under the proviso to sub­section (3) of section 9 may pass any sentence authorised by law except a sentence of death". The law-making authority did not make any amendment in Chapter XXIII of the Code of Criminal Procedure which deals with the. trial before the Court of Sessions and Chapter XXXI Cr.P.C. which deals with references and revisions.

 

By the said legal fiction, an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge shall have all the powers under the aforesaid three Chapters, i.e. Chapter XXIII, XXXI & XXXII of the Code of Criminal Procedure dealing with trials, appeals, references and revisions. Abu Taker Vs. Razia Begum (1985) 37 DLR 18.

 

S. 32--Trial of offence for which Court can not pass maximum prescribed sentence— competence of Court to try not affected. Noor Hasan Vs. State PLD 1966 (SC) 88.

 

S.33--Scction 33, Cr.P.C. read with sections 64 and 65 P.P.C. limits for imposing sentence of imprisonment, in default of payment of fine. Md. Shaft Vs. Crown 2 PLD (BJ.) 23.

 

S.33 (I)The section governs both the cases where the offence is punishable with imprisonment and fine as well as where the offence is punishable with fine only. Maximum imprisonment in default of payment of fine is six months' simple imprisonment. The State Vs. Abul Kashem. (1985) 37 DLR (AD) 91.

 

S.33(I)(b)--Imprisonment, maximum, in default of fine: The term of imprisonment which-can be legally awarded in default of payment of fine is not to exceed one-fourth of the maximum term of imprisonment fixed for the offence. Abdul Hakim Bhuiya Vs. Gulabdi (1954)6 DLR 488.

 

S.35--Undcr section 35, from which, as amended in 1923, the word "distinct" before the word "offences" had been deleted, separate sentences for rioting and causing hurt and grievous hurt are legal even when the common object of the unlawful assembly was to commit assault. Aftan-Vs. Israfil 54CWN(DR)311.

 

--Sentence in case of several offences— Offences of receiving stolen property under sec.411, P.P.C—Property alleged to be part of 3 different thefts of different dates but recovered from accused at one and the same time—In the absence of evidence to prove that stolen articles were received at 3 different times, 3 separate convictions .and sentences cannot be sustained. Rafiquddin Vs. Crown (1955) 7 DLR(FC) 184.

—Sentence—Separate sentences for rioting and hurt—not proper.f/957; 9 PLD (Kar.) 801.

 

—A and four others were convicted under sections 143, 447, 379 and 427 of the Pakistan Penal Code and separate sentences under section 140, 379 and 427 of the said Code imposed on each of them. Held: That separate sentences were legal. 1 PLR (Dacca) 10

 

—Separate sentences for conviction on separate charges—not passed—Irregularity is'curablc under section 537, Cr.P.C. Zamir Hussain Vs. Crown I PLD(Lah)l79.

 

—Sentences of imprisonment in default of fine for two offences—may be ordered to run consecutively. All Newaz Gardezi Vs. Lt. Col. Md. YusufPLD 1962 Lahore 558.

 

Ss. 44, 107—Likelihood of breach of peace—persons knowing arc not bound to inform police. Umar Khan Vs. State PLD 1962 (P.W.) Karachi 873.

 

Ss. 46, 50—Attack by deceased with light stick or cane—Right of private defence docs not extend to causing death. Pirano Vs. Stale PLD (1962) (W.P) Karachi 106 (DB).

 

S. 46(2)Un'dcr sub-section (2) of section 46, a person entitled to arrest can use all means in his power to arrest the culprit. This would include the employment of other persons to effect the arrest. Md. IshaqVs. Crown 6 (WPC) 157 (161 r-h-col.)

 

S. 54Arrest effected in Karachi of a person accused of murder committed in India—Sanction of Central Government for detention of accused obtained more than two months after arrest— Detention legal. Akhtar HussainVs. Crown 3 PLD (Sind.) 66.

 

S. 54Arrest without warrant—when police officer may arrest—private person has no power to do so. Khan Vs. Stale PLD 1961 (W.P.) Lahore 630.

 

Ss. 54, 60, 61, 107Provisions of Sections explained. Generally the police can not arrest a person accused of a non-cognizable offence without a warrant from a Magistrate though under certain circumstances the police can arrest for non-cognizable offence also. But when a person is concerned in a cognizable offence the police can arrest him without warrant under section 54 of the Code. Section 60 provides that a police officer making an arrest without any warrant shall, without unnecessary delay and subject to the provisions of bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Under "section 61 it is provided that no police officer shall detain in custody person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to a Magistrate's Court. Therefore, unless a police offcer considers that he can not complete the investigation within a period of 24 hours it is incumbent upon him to forthwith produce the accused before a Magistrate. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

S. 55—A contemplated proceeding under section 110, Cr. Procedure Code, against a person is no bar against his arrest under section 55 of the Code by police without warrant if he is liable to arrest under the provisions of that section. Navas Vs. Crown (1955) 7 DLR 361.

 

Ss. 55, 110Proceedings u/s 110 contemplated against person, police may arrest accused under section 55. Mohammad Montazuddin Vs. Shamsur Rahman PLD 1964 Dacca 618',16  DLR 38.

 

S..59—"In his view"—Accused with their guns killed one person and injured another and then started running to effect their escape. A and M who had been coming from the opposite direction heard the gun shots but did not see the actual incident. Witnesses who saw incident shouted out to A and M to arrest the accused as they had killed a man. When A and M advanced to arrest them the two accused fired two more shots injuring A and M.

 

On a charge under section 307, P. P. C., in respect of attacks on A and M it was contended on behalf of the accused that A and M had no right to arrest the accused as no non-bailable cognizable offence had been committed "in his view" and therefore as against the attempts by A and M to arrest them the accused had the right of private defence.

 

Held: The words "in his view" are to be liberally construed. In the circumstances of the present case the offence can very really be said to have been committed in the view of A and M for it is by the evidence of their own eyes and ears that they discerned its existence. What they saw and heard left no doubt in their minds that the accused were running away after firing at the people. Md. Ishaq Vs. Crown (1954) 6 DLR(WPC) 157.

 

S. 59Right of a private person to arrest" any person who in his view commits a non-bailable and cognizable offence" is restricted to exercise of such right of arrest when such offence is actually seen being committed. State Vs. Muhammad Akbar (1966) 18 DLR (SC) 299.

 

S. 59Arrest by private person— Persons actually witnessing commission of cognizable and non — bailable offence and also persons who come to their assistance on hearing their outcry for help can apprehend offenders—Expression "in his view" occurring in section 59 explained.

 

Section 59 should not be construed so as to burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their presence, it had intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much-wanted but rarely displayed public spirit on the part of the neighbours and others who might come to the rescue of the victims of dastardly crimes and help them in bringing the culprits to book. In this view of the matter and the circumstances of this case, we arc of the opinion that Sultan had no Justification whatsoever to fire at Ali Muhammad deceased and that his act amounted to clear murder. Sultan Ahmad Vs. the Staie(1970) 22 DLR (SC) 162.

 

—A private person may arrest any one who in his view commits a non-bailable and cognixablc offence or is a proclaimed offender. The offence committed by the appellant fell under section 308 of the P. P. G. An offence under that section though cognizable is bailable and therefore the attempt of B to arrest the appellant was not justified in view of section 59 of the Code of Criminal Procedure. Nawab Vs. Crown 5 DLR (Lah.) 207.

 

— "In his view" Interpretation should be liberal—persons who heard the shouts and saw people following the accused—If may arrest them on being called upon to do so by those who saw the commission of the offence. Murad Vs State PLD1961 Karachi 137.

 

—Private person—when may arrest an offender. Khan Vs Stale PLD 1961 (WP) Lahore 630.

 

S. 59(1)An offence under section 19 of the Arms Act (XI of 1878), though cognixablc, is bailable and therefore the attempt by a private person to arrest a man carrying an unlicensed arm is not justified by section 59, Cr. P. Code. A ta Muhammad Vs. Crown 3 PLD(Lah) 279(234).

 

S. 61Remand the police granted at place other than court by Magistrate—Illegal. State vs Mohd YusufPLD(1965) WP Lahore 324.

 

Ss. 61, 164. 167—Accused kept in custody for more than 24 hours—improper—Effect— confessional statements may be admitted when no evidence of duress. State vs Ali Ahmed (1964) 16 DLR 558

 

Ss. 61, 167, 173—Production of accused before Magistrate under section 61 and the courts order therein docs not mean taking cognizance. Police submitting final report before completing investigation, an order of discharge therein is not a judicial order. Abdur Rahman Vs Stale (1977) 29 DLR (SC) 256.

 

S. 64Applicability—Applies where obvious offence is committed—Docs not apply where ascertainment of commission of offence depends upon inquiry. A. K. Khalid Vs. Ghulam Quadir Khan, PLD 1962 (W.P) Lahore 411; 14 DLR (W.P.) 25.

 

S. 68(2)Dafadars and Chowkidars arc not public servants within the meaning of section 21 P. P. Code, but arc public servants for the purpose of serving summons under section 68(2), Cr. P. Code. Loknath Vs. Crown (1955) 7 DLR 344; Chand Khan Vs. Crown 2 PCR 21.

 

—The issue that dafadcrs and chowkidars arc not public servants has been overruled; vide 9 DLR 323

 

S. 71Service by affixture can only be availed of if service in the manner specified in sections 69 and 70 cannot by the exercise of due diligence be effected. 43 Cr L J. 113.

 

S. 76Upon receipt of a report in writing from the Tahshildar, alleging that the two petitioners, who arc father and son, "uttered ugly words to me and my collecting staff and they are trying to take illegal action against us which would create troubles on my life in furturc if the culprits be not brought to book," the S.D.O. passed the following order :-

 

"Seen report of Tahashildar, Naogaon. Issue W/A with bail of Rs. 15.000/- each three local sureties of the like amount each I/D to hajot under sec. 186 PPC. The local sureties to be accepted to the satisfaction of S.D.P.O. Put up with other cases in this connection." Held: The S.D.O. has gone off the rail by directing that the sureties are to be accepted to the satisfaction of S.D.P.O. If the warrants were directed to the S.D.P.O. there would be no question of providing in the order that'sureties were to be tested by the S.D.P.O., and if it was to be directed to some other officer the requirement of, the sureties being tested by the S.D.P.O. before acceptance of the bond would tantamount to a direction to take and keep the petitioners in custody for some time before the sureties could be conveniently tested at leisure by the S.D.P.O. The section does not sanction such a procedure.

 

The S.D.O. should refer to the forms of warrants of arrest given in Schedule V appended to the Code of Criminal Procedure. The portion of the order relating to acceptance of the sureties to the satisfaction of the S.D.P.O. is deleted and in place of the figure Rs. 15,000/- the figure Rs. 50/- is substituted. Md. Abdul Jabbar Khan Vs. The Stale (1968) 20 DLR 828.

 

Ss.76, 427Warrant issued by High Court—If Magistrate to whom they arc returnable can admit accused to bail. The State Vs. Shafaat Ahmed PLD 1961 Lahore 42

 

Ss. 87, 88Defect in proclamation—No prejudice caused—Error curable under S. 537. Shah Mohd Vs. State PLD 1964 (WP) Lahore 243.

 

—Notice for proceedings not given— irregularity curable u/s 537. Abdur Rashid Vs. State 13 DLR 736; PLD (1962) Dacca —245.

 

—Processes under the section —When may be issued—Absconsion after issue of warrants is condition precedent for issue of process. Abdur Rashid Vs. State 13 DLR 736; PLR (1962) Dacca -245.

 

—Property of person other than one intended attached—Remedy of aggrieved person. Shah Mohd Vs. Stale PLD 1964 (WP) Lahore 243.

 

87(1)Thirty days'time for surrender not given—proceedings do not become invalid in every case. Abdur Rashid Vs. State PLD 1962 Dacca 245', 13 DLR 736 

 

S. 88 (3)Effect of the order of attachment upon the contending parties. Abdur Rashid Vs. Slate PLD 1962 Dacca 245113 DLR 736.

The order restraining both the parlies from entering in the disputed land and appointing a Receiver for the same amounted to attachment of the Land according to the provision of section 88 (3) of the Cr.P.C. As such the order ,is not illegal. Sultan-uddin Ahmed Vs. Murshed All (1977) 29 DLR 72.

 

S. 89Restoration of properly attached u/s. 87,88—order can be passed only u/s. 89—No inherent power to pass order. Abdor Rashid Vs. Slate PLD 1962 Dacca—245 ; 13 DLR 736.

 

Ss. 90 (b), 526Summons not returned— Magislralc issuing bailable warrant—unjustified acl—ground for Iransfcr of case. Mohammad Siddik Vs. Slate PLD 1961 (W.P) Karachi 675.

 

S. 91A woman, over whom iwo factions ihrcalcncd to commit a breach of the peace, was remanded to judicial custody by Magislrate. The order had no reference lo scclion 91, Cr. P. C, but was passed in ihe inlcrcsl of public iranquilily.

 

Held : Such a motive did not give .the Magistrate jurisdiction to confine any one in jail. The woman was adult and when such a woman is produced before a court the duly of a Magistrate is to allow her to go where she chooses. Crown Vs. Mst. Qaiser 7 DLR (WPC) 104.

 

S.   94Notice   to   produce   document-proceedings pending before Magistrate no notice can . be issued. Maqbul Hussain Vs. State PLD 1961, Dacca 795; 13 DLR 146.

 

S. 96Where search warrant was issued on request of Customs aulhorilics for purpose of taking over documents and invoices. Held: The- invcstigalion by the Customs authorises was not authorised under the Code, and therefore the warrant, being issued for a purpose outside the scope of the Court's powers under section 96, was illegal. Tar Mohammad Vs. Crown (1953)5 DLR (WPC-)53.

 

—Search warrant when may be issued: The learned Magistrate in the present case being a first class Magistrate was quite competent to issue the search warrant under section 98 of the Criminal Procedure Code.

 

All that is required in the use of section 96 is that the Magistrate should act on information of the commission or suspected commission of an offence, if it is considered essential to the inquiry, etc. For application of section 98, it has only been stated that the Magistrate should try to get satisfied on -receipt of the information before issuing the warrant. Abdul Ilalim Vs. Shadhan Ranjan Dey (1968) 20 DLR 68.

 

—Pendency of proceeding and examination of the complainant not necessary: No proceeding or inquiry for the offence need be pending in cither case. Sufficient to say at this stage that in the case of section 98, the Magistrate is only to be satisfied that a particular place has been used for the deposit or sale of stolen property before he issues the search warrant. If pendency of any proceeding or inquiry is not necessary for the issuance of search warrant the examination of the complainant is also not necessary for the purpose. Such examination is necessary for taking cognizance only. Abdul Ilalim Vs. Sadhan Ranjan Dey, (1968)20 DLR 68.

 

S.   98Seizure   of   stolen   goods—For seizure of stolen goods no petition is required to be filed by the complainant in the case. Return of goods seized under section 98 Criminal Procedure Code—Section 98 docs not provide for returning goods to persons from whom the same had earlier been seized. Md. Yousuf All Vs. Munir Sonar, (1973) 25 DLR 206.

 

Ss. 99-A, 99-D:- The plain meaning of section 99-D is that the order of the Provincial Government passed under section 99-A can be set aside only if it could not have been passed on any of the grounds mentioned in section 99-A and not merely on the ground that the book which has been forfeited contains matter which though if falls under section 99-A of the Code of Criminal Procedure docs not offend against that section of the Penal Code which the Provincial Government was of the view that it offended. The Working Muslim Mission Trust, Lahore Vs. Crown(l 955)7 DLR (WPC) 17 (33).

 

S-99-A:- Different classes—"Different people" docs not mean different classes. Muhammad Ahmad Vs. Administrator of Karachi, PLD 1961 (WP) Karachi 129.

 

S-99-B:- Order of forfeiture upheld by High Court not on grounds stated by the Provincial Government but on another ground mentioned in section 99-A—High Court acted illegally. The Working Muslim Mission Trust, Lahore Vs. The Crown (1956)8 DLR(FC) 110 (117).

 

SS-99-B and 99-DOrder of forfeiture not justified under the provision under which it was made—High Court should not sustain it on other grounds. Mohammad Ahmed Vs, Administrator of Karachi PLD 1961 (WP) Karachi 129.

 

S-100:- Minor recovered under the section— May be given into custody of neutral person— Court's power of granting custody of minor are discretionary. Jahan Ara Begum Vs. stale PLD 1964 Dacca-42,15 DLR 148.

 

-Ss- 100,  92,  91—Allegation  that  woman was in illegal confinement—Search warrant under S 100 can not be issued. Ayesha Begum Vs. State.

 

—Person recovered on warrant issued under the section—Major—can not be detained in custody against his will. Jahan Ara Vs. State PLD 1963 Dacca 464 15 DLR 148.

 

—Woman recovered on warrant issued under the section—Must be produced before Magistrate—can' not be kept in detention against her will. Mohd. Sharif Vs,Lal Mohd. PLD 1962 Quetta 108,

 

S- 103:- Search should be conducted in the manner provided in section 103, Criminal Procedure —as.

 

Code - offence in the present case fell to be tried under the provisions of P.O. 50/72 In the absence of any compelling or substantial reason the provisions of section 103 of the Code of Criminal Procedure must be complied with while conducting a search. Daud All Vs. State (1975) 27 DLR 155.

 

—Failure to comply with S. 103— conviction may not be upheld.

Where the failure to comply with the provisions of section 103 leave the evidence in an unsatisfactory condition so that there is reasonable doubt as to whether the offending articles were really in the possession of the accused, the conviction ought not be sustained. Where neither of the two search witnesses belonged to the locality and one of them belonged to the rival parly of the accused and was also challancd in a criminal case u/s 107 Cr.P.C. the prosecution could not be sustained. Pachu Vs. the State (1974) 26 DLR 297.

 

—Procedure laid down in section 103 need not be followed by I.O. while seizing alamats. Majibur Rahman Vs. State (1987) 39 DLR 437.

 

—Search, illegality of—cannot vitiate the proceedings if the accused is found guilty. Crown Vs. Mohammad Siddique (1957)9 DLR(WPC) 16.

 

—"Locality" docs not mean same quarter of Town. Taj Mohammad Vs,Crown PLD 1950 B.J. 24

 

 

—Opium Act—Search undersection applicable

A search conducted after this issue of a warrant u/s 5 of Act (111 of 1867) is not a search under Chapter VII of the Cr.P.C. and section 103, Cr.P.C. can have no application. Nawab Din Vs. State PLD 1965 Lahore 340

 

S- 103(1)Respectable witnesses of Locality must witness the search—witnesses not present at search—grave doubts may be entertained as to testimony of such witnesses. Sarder All vs state.l6 DLR (WP) 148;PLD 1964 Lahore 386

 

—Search of gambling den—section .not applicable. Nawab Din Vs.State PLD 1965 Lahore 340

—Witnesses of recoveries belonging to another village—Evidence of—can not be discarded. Meal Vs.State PLD 1962 Lahore 58

 

S-104When partly inculpatory and partly exculpatory—Exculpatory portion to be rejected being contrary to evidence but court can convict the accused person on the basis of the inculpatory portion of the statement and the judicial statement of the accused is admissible as confessional statement. The State Vs. Badiuzzaman, (1973)25 DLR 41.

 

S. 107Non-compliance with the provision of section 107 - Show cause notice as provided in sub-section (1) of s. 107 mandatory which cannot be dispensed with—In case of imminent breach of peace Magistrate, as provided in s.104, may issue warrant for arrest of a person. (1980) 32 DLR 352.

 

Ss.-107, 44Likelihood of breach of peace-person knowing of bad blood between parties need not inform the police. Umar Khan Vs.State PLD 1962 Karachi 873

 

—Notice of exact accusation not given—order binding down person preceded against is illegal. Balaram Sarkar Vs Nabakanta(196D13 DLR 243; PLD 1962 Dacca 83.

 

—When petition is filed before a District Magistrate for initiation of proceeding under section 107 the District Magistrate may either draw up proceedings himself recording the grounds of his satisfaction and thereafter transfer them to some subordinate Court for disposal or he can send the petition for disposal to some other subordinate Magistrate for that Magistrate to decide whether in his opinion proceeding under section 107 should be drawn up. Crown Vs. Mashibur Rahman (1954) 6 DLR 79.

 

—Execution of a bond u/s 107 is a separate proceeding u/s 145—Procedure to be followed in case of proceeding u/s 107 whereby provision under sections 112, 108, 109 & 110 shall have to be complied with. Sultan Ahmed VsJIaji S. Ahmed (1980) 32 DLR 352:

 

—If on perusal of the petition and hearing Jhe parties the Magistrate is satisfied that there is apprehension of breach of the peace but he does .not slate in writing the ground of his satisfaction then the order though defective would not be without jurisdiction. Mojibor Rahman Mullick Vs. Tobarak Majhi, (1972) 24 DLR 48.

 

—An order of seizing arms under section 25 of the Arms Act can validly be made in a proceeding under section 107 Cr. P. G. Mojibor Rahman Mullick Vs. Tobarak Majhi (1972) 24 DLR 48.

 

—Order for security—Finding that there is danger of breach of peace is prerequisite for the order. Ijaz All Shah Vs. Iqbal Begum PLD 1963 Peshwar 175.

 

S. 107Order under section 107, when may be passed—Duty of the Magistrate laid down. Ijaz AH Shah Vs. Iqbal Begum. PLD 1963 Peshwar 175.

—Serious allegations—Sufficient reason for Magistrate to proceed under the section. Abdul Rahman Vs. State PLD 1965 Karachi 292.

 

Ss. 107, 112, 117 & 118.In matters arising out of S. 107, even in case of emergency, provision of S. 112 must be complied with and as provided in S. 117 Magistrate shall ascertain whether execution of bond is necessary. In case of emergency further provision has been made for execution of interim-bond. Sultan Ahmed Vs. //a/7 S. Ahmed (1982) 34 DLR (AD) 354.

 

Ss. 107 & 145—Proceeding in respect of the disputed land while pending u/s 145 Cr.P.C. in the Magistrate Court, the first party filed an application u/s 107 of the Cr.P.G. and the Magistrate thereupon directed the 2nd party to execute a bond of 2000/- for good behaviour for one year. Thus two fold order was passed against the 2nd party, one u/s 145, not to enter the disputed Land and another to execute bond u/s 107—proceedings u/ss.

 

107 and 145 are different and independent of each other—The Magistrate, however is competent to act u/s 107 if he is satisfied that any party to the proceeding u/s 145 is likely to commit breach of peace and on such satisfaction may'bind down the person who is likely to commit breach of peace. Sultan Ahmed Vs. Ilaji S. Ahmed (1982) 34 DLR (AD) 352.

 

Ss.107, 112, 117—Nature of proceedings—Judicial—Evidence must be taken and a complete enquiry held before passing order. Rajendra Mohan 'Das Vs. Serajul lioque (1961) 13 DLR 609;PLD 1961 Dacca -122.

 

Ss. 107, 112, 117—Proceedings under 107 referred to police for report—Report of police favourable'to opponents—Magistrate may ignore report and issue Summons. PLD 1965 Karachi 292.

 

—S. 109 —Court of Sessions precluded from taking cognizance of an offence as a court of Original jurisdiction. So far as the Court of Session is concerned, proceeding must initiate before a Magistrate as provided in section 190 Cr. P. C. A Magistrate taking cognizance of an offence issues process under section 204 thereof. Section 205C provides, inter alia,that when in a case instituted on, a police report or otherwise the accused appears or is brought before the magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall send the case to the Court Of Session. The Court of Session is precluded from taking congizancc of an offence as a court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. Abdur Razzaque Vs. State (1983) 35 DLR 103.

 

Ss.  109,    112,    114,    115,    117,    118

Mandatory provisions to be followed when a'ction under section 109 Cr.P.Codc deemed necessary. If a Magistrate deems it necessary to take action against a person under section 109, C'r.P.Code, he should make an order under the provision of section 112 of the Code and, in so doing it is a mandatory provision of law that the substance of the information.received be embodied therein, The failure to do so is an irregularity which is not curable by virtue of section 537, Cr.P.Codc. A copy of the order as required by section 115,Cr.P.C., should then be delivered to him when he is served with a summons under section 114, Cr.P.C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case must be held under provision of section 117, Cr.P.C. and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he can pass such order as he thinks fit under the provision of section 118, CrP.Code.

 

The act of a person who tried to run away and who gave a false name to the police when questioned did not justify the inference that he was unable to give a satisfactory account of himself. (1953) 5 DLR (WP) 109 (112 J-h col).

. S, 109(a)—applies only where concealment is continuous—Does not apply where concealment is momentary. Abdul Aziz Vs. Slate (1961) 13 DLR 387;PLD 1962 Dacca 611;PLR 1961(1) Dacca 1048.

 

—S. 109(b)—"Satisfactory account of himself'-r-Mcaning of—Docs not mean momentary behavior—whole course of conduct is to be explained. Stale Vs. Abdul Hakim 16 DLR (WP) 204;PLD 1964 Karachi 384.

 

—S. 110 : Reasonable proof necessary before security is demanded.

The manner in which a particular person might have behaved may give rise to suspicion in the minds of the police officials who arrested him: but suspicion alone is not sufficient for any Court to demand that such a person should furnish security. Reasonable proof is essential before security is demanded and no laxity in the procedure for dealing with such cases can be countenanced. (1953) 5 DLR (WP) 109 (112 left-h.col).

 

—Cross Examination of witnesses not allowed in proceedings—final order passed by Magistrate is illegal. Hakeem Vs. State PLD 1963 Karachi 63.

 

Joint Trial—It can not be laid down as a general rule that whenever two persons are tried together u/s 110 Cr. P. C. all the evidences should be equally applicable to both of them where there is ample evidence to show that petitioners were confederate and partners in their misdeeds—a joint trial was permissible. Sk Kaloo Vs Stale 9 DLR 253.

 

—The   word   "habit",   explained—The

word 'habit' implies a tendency or capacity resulting from the repetition of the same act. It means a persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts. Siddiqullah Vs. The State(1970)22DLR491.

 

—Previous conviction— Order for security-There is no bar in initiating a proceeding under section 110 of the Code and such a bar cannot be spelt out simply because the same person has been previously acquitted or discharged of any substantive offence in a case. A previous conviction is not necessary for an order of security being passed in proceedings under section 110 Cr. P. G. Siddiqullah Vs. The State (1970)22 DLR 491.

 

—Where on account of arjscncc of accusation a joint trial of several persons under section 110 is held illegal, it is certainly open to a Magistrate to 'hold enquiry, if so advised, against each of the accused. Hafez Vs. Crown 2 PCR 129

 

—Proof by evidence of general repute.

A charge under section 110(a) or (b) Cr. P.C, may be proved by adducing evidence of general repute. Positive evidence as to the actual commission of an offence is not necessary. Instances of specific crimes are admissible in evidence although they are not supported by evidence of such amount and value as would secure a conviction for a substantive offence. Siddiqullah Vs. The State (1970) 22 DLR 491.

 

—There is nothing to bar proceedings under section 110 being launched against a member of a criminal tribe. Kaloo Zamadar Vs. Crown (1954)6 DLR 375.

 

-Ss. 110-112

—Applicability of the section 110 when an accused is acquitted of the substantive offence. Proceedings under section 110 is maintainable even when the accused is discharged or acquitted of substantive offence.

But in such cases it is always necessary to scrutinize the evidence with great care and come to the conclusion whether there is sufficient evidence to warrant an order demanding security and it should be made clear that the proceedings under section 100 are not to be taken as a means of punishing an individual in an indirect way. Ledu Vs. Crown( 1955)7 DLR 98.

 

Contemplated proceedings—arrest under section 55.

A contemplated proceeding under section 110 against a person is no bar against his arrest under section 55 of the Code by police without warrant if he is liable to arrest under the provisions of that section. Navas Vs. Crown 7 DLR 361.

 

—Formal charge not necessary-substance of the offence to be read out. Framing a formal charge in a proceeding under section 110 is not practicable but, in view of the provisions contained in section 112 of the Code, reading out to the accused the substance of the accusation is almost equivalent to the framing of formal charge. Jagar Mamud alias Akkel AH Vs. Stale(1956)8 DLR 301(403).

 

Ss-110, 112 & 118Simultaneous order to execute a bond and, in default, to suffer imprisonment illegal—such order, however docs not render the whole proceeding illegal. Jale Vs. Crown (1956) 8 DLR 1.

 

Ss-110, 537Proceedings transferred to Magistrate not empowered to deal with matter— proceedings illegal—final order u/s 118 void. Abdur Rahman Vs;State (1962) 14 DLR 21i;PLD 1963 Dacca 372, PLD1963 Dacca 826 (Repeated Case).

 

S-112: Simultaneous order to execute a bond and in default to suffer imprisonment, illegal. Such order, however, docs not render the whole proceeding illegal. Jhale Khan Vs. Crown (1956) 8 DLR 7  .

 

—Magistrate may pass an ad interim order in emergent circumstances at any stage after the order u/s. 112 is passcd-Pcnding the conclusion of enquiry Magistrate may take action u/s. 117(3) before appearance of the 2nd party. Abul Hussain Vs. Aminur Rahman (1968) 20 DLR 759.

 

—Substance of information to be embodied.

If a Magistrate takes action against a person under section 109 Cr.P.Code, he should make an order under the provisions of section 112 of the Code. In so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an-irregularity which is not curable by virtue of section 537, Cr. P.Code. (1953)5 DLR (WP) 109 (112).

 

Interim bond can be asked for— Party must be before the Court—Pending completion of the enquiry"-explained. The Sessions Judge is of the view that an interim bond can be asked for only after an order in terms of section 112 Cr. P. C. has been made. In this connection he has referred to 17 DLR 38 (Abdul Rashid Vs. Muklar Khan and others). This view finds support also from the opening words of sub­section^) of section 117. Again, sub-scction(l) of section 117 provides that the Magistrate shall proceed to inquire into the truth of the information when the proceeding is read over to the person present in court or when any person appears or is brought before Magistrate and unless a person against whom the proceeding is drawn up is before the court an inquiry cannot be said to have commenced. The .words "pending completion of the enquiry" can only mean that the inquiry has to commence before an interim bond can be asked for under sub-scction(3) of section 117 Cr.P.C. Sheraj Mia Vs. Siddiqur Rahman{ 1968)20 DLR 711.

 

Ss-112 and 113—Magistrate's failure to comply with the imperatives in sections 112 and 113 render the proceedings illegal.

 

—Ss. 112-117

The order requiring respondents to execute a bond under section 109, Cr. P. C., cannot, therefore, be maintained. Crown Vs. Sultan 2 PLD(BJ)83.

 

Ss-112, 107—Conditions that sureties must be holding certain amount of land and must be resident near accused—whether onerous and illegal. State Vs. Ghulam Husyain PLD 1963 Karachi 679,

 

Ssll2, 107, 117 :— Nature of proceedings Judicial—Evidence—Evidence must be taken and a complete enquiry held before passing order. Rahendra Mohan Das Vs. Serajul Hague PLD 1961 Dacca 122

 

-r—Order to give surely for 12 months—persons kept in custody pending proceeding for 16 to 17 months—order quashed. State Vs. Hyder PLD 1963 Karachi 673;PLR 1963 (1) W.P - 285 (DB).

 

—Person proceeded against must be informed about information against them—object of section. Abdul Karim Vs. Slate PLD 1963 Peshwar.233

 

Ss-114, 115, 117, 118—Requirement of the Section to be complied with. If a Magistrate takes action against a person under section 109 Cr. P. Code, he should make an order under the provisions of section 112 of the Codc,andin so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an irregularity which is not curable by virtue of section 537, Cr. P. Code. A copy of the order as required by section 115, Cr.P.C. should then be delivered to him (i.e., the person concerned) when he is served with a summons under section 114,Cr. P. C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case must be held under provision Of section 117 Cr. P..C., and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he can pass such order as he thinks fit under the provision of section 118, Cr.P. Code. 5 DLR(WP>) 109 (112, L-h Col.).

 

S-117Contemplates that the order under sub-sec.(3) shall be passed after the order u/s. 112 has been made and read out or explained to the defendant u/s. 113 Cr. P. Code. Comrade Mokbool Vs. Azad J &K Govt.(1955) 7 DLR(WP)44.

 

8-117(1): When an order under section 112 of the Code is already known to the persons concerned, is in compliance with the provisions of sec. 113 or 114, there is perhaps no necessity of reading or explaining the said order to, them once again under sub-section (1) of section 117. Abul llossain Vs. Aminur Rahman(1968) 20 DLR 759.

 

S. 117(2)Warrant case procedure. The application of the procedure of warrant trials to 'good behaviour' cases should be as nearly as practicable—Clear departure, not proper—Cross-examination of P.Ws. should generally wait till next hearing. Direction for immediate cross-examination, without recording reason, causes prejudice. Jagar Mamud Alias Akkel All Vs. State (1956)8 DLR 401.

 

S. 117(3)Section 117 contemplates that the order under sub-sec.(3) shall be passed after the order under section 112 has been made and read out or explained to the defendant under section 113, Cr. P. C. Comrade Makbool Vs. Azad J & K. Govl.(1955)7 DLR(WP)44.

 

—Magistrate may pass an ad-interim order in emergent circumstances at any stage after the order under section 112 is passed—Pending the completion of enquiry Magistrate may take action under section 117(3) before the appearance of the 2nd party. Abul llossain Vs. Aminur Rahman(Dac)(1968) 20 DLR 759.

—A Magistrate exercising power under the sub­section may, for reason to be recorded in writing, pass an ad-interim order directing to execute a bond, to meet the emergencies but such order should not be lightly made without carefully considering the situation. Abul llossain Vs. Aminur Rahman( 1968)20 DLR 759.

 

-Ss. 117-118

—Interim bond when can be asked— Party must be before the Court,"Pending completion of the enquiry" explained. The Sessions Judge is of the view that an interim bond can be asked for only after an order in terms of section 112 Cr. P. C. and has referred to" 17 DLR 38(Abdul Rashid Vs. Muktar Khan and. others). This view finds support also from the opening words of sub-section(3) of section 117. Again, sub-section(l) of section 117 provides that the Magistrate shall proceed to inquire into the truth of the information when the proceeding is read over to the person present in court or when any person appears or is brought before Magistrate and unless a person against whom the proceeding is drawn up is before the court an inquiry cannot be said to have commenced. The words "pending completion of the enquiry" can only mean that the inquiry has to commence before an interim bond can be asked for under sub-section (3)'of section 117 Cr. P. C. Sheraj Mia Vs. Siddiqur Rahman (1968) 20 DLR 711.

 

—Surety—May be required till completion of inquiry—security demanded for two years—illegal. Gul Hussain Vs. State (1961) 13 DLR(WP) 66; PLD1961 (W.P) Karachi 698

 

—An application under section 117(3) must be dealt with care and prudence. They arc urgent orders arising out of an emergency and can only be justified in the exceptional circumstances of an emergency. Comrade Makbool Vs. Azad J & K Govt. (1955) 7 DLR (WP) 44.

 

Sentence—Separate sentence for rioting and hurt—not proper. 7957 PLD (Kar) 801.

 

Ss. 117(3), 118Immediate measurers u/s 117(3)—May be taken only after inquiry as to necessity" for immediate measure. State Vs. Hyder PLD 1963 (WP) Karachi 673.

 

117(3): Inquiry before passing order—Merc statement of complainant not enough—Examination of independent witnesses necessary. Bahadur Vs. Slate PLD 1964 (WP) Karachi 85.

 

Ss. 117, 112, 107—Nature of proceedings-Judicial-Evidcncc must be taken and complete enquiry held before passing order. Rahendra Mohan Das Vs. S. lioque PLD 1961 Dacca 122 (1961) 13'DLR 609.

 

S. 117(5)Where two or more persons have been associated together in a matter under enquiry under section 117(5) they may be dealt with in the same or separate enquiry. A joint enquiry against many persons would foe fully justified if and when these persons have joined together as habitual offenders or thieves. 2 PCR 129.

 

—The language used in section 117(5) makes it very clear that the Magistrate has to decide before the enquiry commences whether certain persons would be dealt with in the same or separate enquiry. Mofiz Vs. Crown 2 PCR 129.

 

S. 118Simultaneous default to execute bond or order to suffer imprisonment not bad when passed in conformity with the provisions of sections 118 and 123(1) of the Code.

 

But if the order is passed without giving a reasonable time to the petitioner to execute bond, also the order docs not give an opportunity to him to be released from custody, the moment he furnishes the security, such an order will be highly improper and bad in law. Siddiqullah Vs. The State(1970)22 DLR 491

—Reasonable time to furnish security. Magistrate must give a reasonable time to the accused to furnish security and if he docs not do so by his first order directing him to furnish security he may by a subsequent order give him time to furnish security. Amjad All Vs. Crown (1955) 7 DLR 98(102).

 

—Order under section 118 reversed on appeal and retrial directed.

The appellate Court in disposing of an appeal under section 423, Cr. P. Code, against an order passed under section 118, Cr.P.Code, set aside the trial Magistrate's order on the ground that the evidence was not properly recorded by the Magistrate and sent back the case to another Magistrate to —Ss.  118-123

proceed with the trial in accordance with the directions given by the appellate Court.

 

Held: The trial Court's order being reversed in appeal the appellate Court should have passed an order consequential or incidental to the order setting aside the trial Court's order. Muradally Vs. Crown 1 PCR 45.

 

Ss. 118 & 123: Simultaneous orders to execute bond or suffer imprisonment in default, illegal. Amjad All Vs. Crown(1955)7 DLR 98(101).

 

S. 118Amount of security—Must be within means of the person proceeded against. Muhammad Sarwar Vs. State 17 DLR (W.P)50. PLD 1965 (W.P) Peshwar 14.

 

—Ss. 118, 110—Order of execution of bond and imprisonment for default—two orders can not be simultaneous. 14 DLR 211:PLD 1963 Dacca 826.

 

Ss. 118, 107, 110—Object of taking security—Amount of security should not be excessive—How discretion of Magistrate may be exercised. Muhammad Sarwar Vs. Slate. PLD 1965 (W.P) Peshwar 14; 17 DLR (W.P) 50.

 

S. 118Onerous condition attached to order to give Security—Illegal—Magistrate should himself determine whether he would take surety bond from a person or not. Muhammad Sarwar Vs. State. PLD 1965 (W.P) Peshwar 14.17 DLR (W.P) 50.

 

Ss. 118, 110Person proceeded against consenting to give security—Not sufficient for order to give security—Order must be based on legal evidence and legal, finding. Abdul Karim Vs. Stale PLD 1963 (WP) Peshawar 233.

 

S. 119Complainant (in respect of a proceeding under section 107 Cr.P. Code) being found absent on call, Magistrate passed an order of discharge under section 119. Immediately thereafter the complainant appeared and filed an application for revival of the case and on that the Magistrate revived the case.

 

Held : There was in Law no discharge and the proceedings u/s. 107 to be treated as alive—There was no question of revival in the case. Badal Chandra Chose Vs. Mojibur Rahman (1974) 26 DLR 373.

 

—Applicant absent, order of discharge may be passed by Magistrate—Order of Magistrate demanding security from applicant for appearance is ultra vires. Msi. Zaitoon Vs. Samundar Khan 7 PLD(Bal.)19.

 

S. 120(1)Imprisonment in default of security. Person undergoing sentence of imprisonment ordered to furnish security and in default to undergo imprisonment—Imprisonment in default of security to commence on expiration of first sentence. Crown Vs. Rahim Baksha 2 PLD(BJ) 63.

 

S. 122(1) : Proviso—surety—Rejected without enquiry—Illegal. Gul Hussain Vs. Stale 13 DLR (W.P) 66'PLD 1961 (W.P) Karachi 698.

S. 123 : Reasonable lime to furnish security must be given. Without affording lime to execute the bond the Magistrate cannot in exercise of the power under section 123 commil Ihc person to prison. Amjad All Vs. Crown (1955) 7 DLR 98.

 

—Simultaneous order to execute bond or suffer imprisonment, illegal. Amjad All Vs. Crown 7 DLR 98.

—Simultaneous order to execute bond or suffer imprisonment, illegal, Such order, however, docs not render the whole proceeding illegal. Jhale Khan Vs. Crown (1956) 8 DLR 7.

 

S. 123 F.C.R—Section docs nol apply to proceedings under F.C.R. A jab Khan Vs. State PLD 1963 (W.P.) Peshwar 224 (DB).

 

S. 123(1)Simultaneous default order to execute bond or to suffer imprisonment not bad when passed in conformity with the provisions of sections 118 and 123(1).

 

But if the order is passed withoul giving a reasonable time to the petitioner to execute the bond -Ss. 125-133

 

and also the order does not give an opportunity to him to be released from custody, the moment he furnishes the security, this order will be bad in law. Siddiqullah Vs. Slate (1970) 22 DLR 491.

 

Ss. 125, 156A : Order cancelling bond for good behaviour—judicial order—High Court may interfere with the order. Imam All Vs. District Magistrate PLD 1965 (W.P.) Lahore 3/8.

 

S. 127: Deputy Director of the Bureau of Anti-Corruption Department though a P.S.P. Officer not a "Police Officer" within the meaning of section 127 Cr.P.C., and as such cannot disperse an unlawful assembly. A.K.M. Shajahan Vs. State (1969) 21 DLR 307.

 

—S. 133 : Under section 133 it is for the Magistrate before whom an information lodged to consider if any obstruction is to be removed from a public path way. Where the Magistrate, on the materials before him, did not think fit to proceed under section 133 CrP.Code, it was not to open to the Sessions Judge to say that the Magistrate on the consideration of the materials was under obligation to proceed under that section. Nizamuddin Vs. Akbar All Sheikh (1956) 8 DLR 233.

 

—Accepting verdict in part—Having regard to the provision of sections 133—139 (which deals with public nuisance) it is not open to a Magistrate to accept the verdict of the jury in part. Abdul Jalil Vs. Kutubuddin, (1957) 9 DLR 172.

 

—Provision of the Section arc to be invoked on the occasion of grave emergency or imminent danger. If a public nuisance is allowed to stand for a long time the section will not be applicable, llafizur Rahman Vs. Abdul Kader Talukder (1956) 8 DLR 298.

 

—'Public nuisance' is a nuisance to the public or to the people in general who dwell or occupy property in the vicinity or persons who may have occasion to use any public right.

 

A notice made in the carrying on of a lawful trade under a licence, if injurious to the physical comfort of the community is a public nuisance and a Magistrate has jurisdiction to proceed under section 133 Cr.P.Code for the abatement of the nuisance. S. R. Mahmud Vs. Jahangir (1969) 21 DLR 31.

 

—Section 133 is attracted in the case of obstruction raised which is of recent origin but not an old one. Mosharraf Hossain Vs. Hajee Nurul Islam (1969) 21 DLR 557.

—Magistrate commits an illegality if a person appears before him upon an order passed u/s. 133(1) and denies the existence of a public path, if without an enquiry envisaged u/s. 139 he makes the order absolute. Mosharaf Ilossain Vs. Hajee Nurul Islam (1969) 21 DLR 557.

 

Tree forming common  boundary.

A tree on the bank of the tank which forms the common boundary of the petitioner's tank and the opposite parties house docs not fall within the definition of public nuisance, nor can it be said thai if it falls it is likely to cause injury to persons, living or carrying on business in the neighbourhood or passing by, merely because if it does fall, it is likely to cause damage to the opposite party's boundary wall and cookshed. Azizur Rahman Vs. Manik Uddin, 1 PLD 43.

 

—Reference to arbitration if competent:

Under Chapter X of the Criminal Procedure a conditional order under section 133 can only be made absolute according to sections 136, 137 and 132 of the Code. There is no provision in the chapter for any reference of a public nuisance to arbitration and no provisions for making of a conditional order absolute as a result of finding of the arbitration. Md. Mohasin All Vs. Abdur Rashid Mrida 54, CWN (DR 2) 133.

—Direction to party to remove obstruction without first requiring them to put in written statement of their respective claims-illegal. Mahabbal AH Sarkar Vs. Jahur All (1957) 9 DLR 257.

 

S.133 : Local inspection—Not evidence— permitted only for proper appreciation of evidence—

 

—Ss.  133-139

order passed on only local inspection—Illegal. Bazal Ahmad Vs. Nur Muhammad PLD 1963 Dacca 852; 14 DLR 741.

 

S. 133 : Final orders cannot be passed without giving an opportunity to the other party. Under section 133 of the Code of Criminal Procedure the Magistrate is not entitled to pass a final order without making necessary enquiry as provided under the Code and giving an opportunity to the other party to show cause. State Vs. Secr&tary, North Bengal Transport. (1974) 26 DLR 9.

 

S. 133 : Application under the section not a complaint—can not be referred to police under S. 202. Bahadur Vs. Mudhai PLD 1963 Lahore 269.

 

—Application under the section can not be referred to arbitration. Bahadur Vs. Mudhai PLD 1963 Lahore 269.

 

Ss. 133 & 139AMagistrate making absolute an order u/s. 137(3) Cr.P.C. without first passing a conditional order u/s. 133 and without following procedure laid down in S. 133 and 139A mandatory. Hayat Gul Vs. Gul Zamir (1966) 18 DLR (WP) 1.

 

Ss. 133, 137—Allegation of nuisance denied by opposite parly—proceedings can not be dropped—Evidence must be recorded by Magistrate. Muhammad Afzaluddin Biswas Vs. Dwijendra Nalh Das (1965) 17 DLR 3'17;PLD 1965 Dacca 366.

 

Ss. 133, 136, 137, 139Conditional order not made under the secdon^Absolute order can not be passed. Bahadur Vs. Mudhai PLD 1963 Lahore 269.

 

Ss. 133,139A : Title, question of—Not to be decided in criminal proceedings. Navfab Vs. State PLD 1963 (W.P.) Peshwar 236.

 

S. 133 & S. 192(1)'Case1 in S.192(1) includes proceedings under section 133.

The word 'case' in section 192(1) of the Cr.P.Code is wide enough to include proceedings under section 133 and consequently a Magistrate who drew up proceedings under section 133 is competent to transfer a case to another Magistrate under section 192(1) of the Code. Ilaji KeramatM Pandit Vs. Sadat AH (1955) 7 DLR 351.

 

S. 137 : Allegations of nuisance denied by party—Magistrate can not drop proceedings without recording evidence. Muhammad Afzal uddin Biswas Vs. Dwijendra Nalh Das 17DLR 317.

 

S. 137(I)(2)(3)Order under section 137 (2) (3) must follow evidence taken under section 137(1)-Ordcr to be supported on proper materials. Ramzan Khan Vs. Md. Madan Khan (1969) 21 DLR 101.

 

S. 139Having regard to the provisions of Sections 133-139 Cr.P.C. it is not open to a Magistrate to accept the verdict of a jury in part. Abdul Mil Vs. Kutubuddin (1957)9 DLR 172.

 

S. 139AMagistrate commits an illegality if a person appears before him upon an order passed under section 133(1) and denies the existence of the public path, if without an enquiry envisaged under section 139A he makes the order absolute. Mosharraf Uossain Vs. Hajee N. Islam(1969) 21 DLR 557.

 

S. 139A—Local inspection—Enquiry held under section 139A is a judicial enquiry and a local inspection held under section 539B cannot take the place of an enquiry under section .139A. Mosharraf Uossain Vs. Hajee N. Islam (1969) 21 DLR 557.

 

—Magistrate must stay proceedings if there is reliable evidence in support of denial of public right. 8 PLD-(Loh.) 1-7-1.

 

—S. 139A—Magistrate making absolute an order u/s. 137(3) of the Cr.P.Code, without first passing a conditional order u/s. 133 and without following procedure laid down in S.139A he acts against the mandatory provisions of law. Hayat Gul Vs. Gul. Zamir(1966) 18 DLR (WP) I

 

-Ss.  139-144

S. 139A—Question as to public right not put to person—person denying such right and producing evidence—Irregularity curable. Dhanne Sheikh Vs. Rahim Baksha PLD 1964 Dacca 236; PLR 1963 Dacca 496.

 

S.   139AReliable   evidence—Meaning of—Does not mean definite evidence of title. Nawab Vs. State PLD 1963 (WP) Peshwar236.]

 

S. 139(A)Summary proceedings—Order must be evidence. Bazal Ahmed Vs. Nur Muhammad'J4 DLR 741 PLD 1963 Dacca 852.

 

S. 139(1) & (2)Inquiry—Magistrate may take evidence of both the parties. 8 PLD (Lah.) 171.

 

Ss. 139A, 142(1)Evidence under S. 139A—Recording can not be made contingent on compliance with injunction u/s. 142. Arabullah Vs. Abdul Wahid 16 DLR SC. 320; PLD 1964 SC 391.

 

S. 139 (a)(l), 133—"Inquiry into the matter"— Meaning of—dropping of proceedings without taking any evidence—Illegal. Bazal Ahmed Vs. Nur Mohd; 14 DLR 741 PLD 1963 Dacca 852.

 

S. 139A (1)(2)—Inquiry—Magistrate may take evidence of both parties. Magistrate must stay proceedings if there is reliable evidence in support of denial of public right. 8 PLD (Lahore) 171.

Ss. 142(1), 133—Mandatory injunction under S.142 (I)-When may be issued—No bar to exercise of power after recall of injunction. Arabullah Vs. Abdul Wahid'16 DLR SC. 320;PLD 1964 SC. 391.

S. 144—Conditions necessary for starting proceedings.

 

Necessary requisite is to see whether there is an imminent danger of breach of the peace. The mere statement by the Magistrate that a serious breach of the peace may take place and immediate prevention and speedy remedy are necessary is not sufficient to give him jurisdiction, if the facts set out by him depend mainly on the reports of the Police Officers. (1953) 5 DLR 76.

 

—Section 144 contemplates suppression of private rights for public tranquility. But such suppression must be temporary and ought not to be made unless considered absolutely necessary and except in emergency. Mueez Ali llatem. Alt Vs. State (1967) 19 DLR (WP) 15.

 

—Curfew orders,  violation  of.

Curfew can lawfully be imposed under section 144 when apprehension of breach of peace, loss of human life, etc, apprehended—Civil authority lawfully can call in aid in exercise of its police powers, armed forces for maintenance of peace and saving of citizen's life, etc. —Shooting of violators of curfew orders cannot be held unjustifiable when circumstances demand. Farid Ahmed Vs. Prov. of E.P.(1969) 21 DLR 225.

 

—Section 144 cannot remain in force indefinitely and, when the order has spent its force, the proceedings under section 188, Pakistan Penal Code, for disobedience of the order can be quashed. (1953)5 DLR 76.

 

—Where a Sub-divisional Magistrate drew up proceedings under section 144 and issued a conditional order of injunction restraining both the parties from entering upon the proceedings land and asked them to file written statements and show cause before him by a certain dale and after written statements had been filed by both the parties, transferred the case to a subordinate Magistrate for disposal who under S.144(4) rescinded the order passed by the Sub-divisional Magistrate.

 

Held : The Sub-divisional Magistrates order upon the parlies to file written statements was illegal. Sreepali Biswas Vs. Rajendra Nalh(1954)6 DLR 427.

 

—An order under section 144 can be only passed by such Magistrates as are specifically mentioned in the section and, therefore, the above case cannol be transferred to a subordinate Magistrate in the manner in which the Sub-divisional Magistrate Iransfcrred il. Sreepati Biswas Vs. Rajendra Nalh (1954) 6 DLR 427.

—Under scclion 144(4), the power of rescinding an order under sec.144 is given only lo a Magistrate —S. 144.

 

mentioned in sub-section (4). A subordinate Magistrate, therefore, possesses no jurisdiction to rescind or modify an order under Sec. 144 passed by the Sub-divisional Magistrate. Sreepathi Biswas Vs. RajendraNath (1954) 6 DLR 427.

 

—Possession of the land : The complainant, having been debarred to enter on the disputed land and exercise any aet of possession by a prohibitory order under See^ 144, eannot validly lay a charge of theft in respect of anything grown on that land during the time the order under Sec. 144 was in force inasmuch as the complainant cannot say he was then in possession of the land. Mafiz AH Vs. RajabAli (1952) 4 DLR 490.

 

—No charge would lie under section 379, Pakistan Penal Code, for taking paddy out of the possession of the complainant when he was debarred from entering upon the disputed land and exercising any act of possession in respect thereof by an order under section 144, served on him before the date of occurrence. Ishaque Mia Vs. Abudl Malek (1958) 10 DLR 366

 

;v-^An order .vacating an earlier order under section 144 must be served personally on the persons to be.affectcd by it. Ishaque Mia Vs. Abdul Malek (1958) 10 DLR 366.

 

—'Order under S.144 restraining the 2nd party from going upon the disputed land was made on 11.12.67. Subsequently the Magistrate converted proceedings started under S.I 14 to those under S.145 on 10.2.68 that is, within 2 months' lime counted from 11.12.67 and therefore the conversion having taken place within 2 months from 11.12.67 it was valid in law. Enat Ali Akanda Vs. Meser Ali Sheikh (1974) 26 DLR 145.

 

—Scope     and     purposes     of     the prohibitory orders under the section.    .

Section 144 Cr.P.C. by its very terms is limited to an urgent case of apprehended danger and the order to be passed under it must be of limited duration. Powers granted under the said section being in derogation of the ordinary civil rights of the citizens, the provisions of the said section should be strictly construed and the power shall be sparingly used in cases of emergency only when there is no alternative remedy for combating the apprehended danger. -OaliAhad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

Successive or repetition of the same orders, held illegal.

In most of the judicial decisions u/s. 144 the making of successive orders were held to be unjustified and liable to be set aside and in those cases where the same orders were practically repeated or the second order was calculated to evade the effect of clause (6) of the section, such orders were declared to have been made without jurisdiction. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

—Orders to operate beyond 2 months are without jurisdiction.

The Magistrate can not pass an order which has the effect of extending the period of operation of such an order beyond two months and the order which purports to or may be deemed to extend such operation should undoubtedly be regarded as being made without jurisdiction. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

—In cases of meeting new developments after the expiry of the first order, a second order may justifiably be made. Oali- Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

—Magistrate acting under section 144 acts judicially and his order should indicate some kind of nexus between prohibited acts and apprehended danger. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

—The .concept of reasonableness in constitutional provisions for harmonising individual interests with collective interest. Restrictions contemplated in sec. 144 must conform to the standard of reasonableness in article 37, of which the guideline is the interests of public order. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 3-76.

 

—Chapters VIII, X, XI and XII, Cr. P. Code. Jurisdiction conferred by Chapter XI (s.144) is to meet cases of emergency-:—Chapters VIII, X and XII deal with matters of more or less permanent nature. Normal expedient which may be more or less permanent in nature for prevention of any disturbance of the public peace and tranquility or public nuisance has been provided in Chapters VIII, X and XII. Chapter IX embodies provisions for taking measures for disposal of any unlawful assembly or any assembly of five or more persons likely to cause disturbance of the public peace. It is the urgency of a case which invests a Magistrate with jurisdiction to exercise powers under Chapter XI. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26DLR 376.

 

—Prohibitory orders passed by the Magistrate (in the present case banning holding of public meetings). Magistrate in his order must state material facts for exercise of his power under the section. The Magistrate charged with the duty of exercising power is required to state the material facts on the basis of which the necessary formation of the opinion has been made, and it is for the Court to see whether the preventive action curbing the fundamental right is reasonable in the interest of the public order. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.

 

—Prohibitory order under the provision—made immediately after the expiry of a previous similar order—If illegal—violation of such order is punishable u/s 188, Penal Code. Azhar Khan Vs. State 12 DLR 8381PLD 1961 Dacca 864.

 

—Prohibitory order—passed immediately on expiry of previous order—If second order is illegal. Azhar Khan Vs. State 12 DLR 838,'PLD 1961 Dacca 864.

 

—Life of the proceedings u/s. 144 having terminated after the expiry of .two months, no fresh proceedings under section 145 could thereafter be started, as proceedings under section 144 being irrevocably dead, they could not either be revived or converted into anything else. Rebati Mohan De Vs. Ansar Ali, (1953) 5 DLR 162-D.       

 

—Facts and reasons must be stated for order under the sections-No reason stated—order is illegal. Muhammed Afzal Khan Vs. State. PLD 1963 (WP)Peshwar 238.

 

Ss. 144, 439Illegal order u/s. 144—Parties likely to suffer from—effect of order even after it ceases to be in force—order may be revised. Sultan Ahmed Vs. Ahmad AH (1953) 15 DLR 702;PLD

1964 Dacca 520.

 

S. 144Orders u/s. 144 were clearly intended to be only temporary in their operation, and there is no lack of authority on the point that any attempt to give such an order permanent or semipermanent effect is illegal. Akhtar Mahmood Vs. DM. Lahore PLD 1964 (W.P.) Lahore 93.

 

Ss. 144 and 145—Dispute over possession of land—Proceedings to be drawn up should be under sec. 145.

 

As .the dispute was relating to land the learned Magistrate ought to have converted the proceedings from one u/s. 144 Cr.P.Code to one under section 145 Cr. P. C. The impugned order therefore has been passed without jurisdiction. Though the order is a dead order, it may be prejudicial to the petitioner regarding his claim of alleged possession, and as such, it is liable to be and is hereby set aside. Maram Ali Vs. The State(1978) 30 DLR 164.

 

—Order u/s. 144 still in force—If proceedings u/s. 144 may be converted into proceedings u/s. 145. Golam Ahmed Vs. Samser Ali PLD 1961 Dacca 499: PLR1960 Dacca 849.

 

—An order under section 144 when to be converted to one under section 145 Cr.P.Code. In a dispute over certain land the Magistrate drew up proceedings under section 144 Cr. P. Code on a police report on 27.9.68 and before expiry of two months passed the following order on 26.11.68.

 

"Both parties are present. The order is made absolute".

 

—Ss. 144-145

Held: The Magistrate should have converted the earlier proceedings drawn up under section 144 Cr. P. Code to one under section 145 Cr. P. Code, if he was satisfied that there was further likelihood of breach of peace over the land in dispute. Joynal Abddin Dhali Vs. Mabullah Malbar. (1970) 22 DLR 87.

 

—Order under S. 144 restraining the 2nd party from going upon the disputed land was made on 11.12.67. Subsequently the Magistrate converted proceedings started under s.144 to those under S.I45 on 10.2.68 that is, within 2 months' time counted from 11.12.67 and therefore the conversion having taken place within 2 months from 11.12.67 it was valid in law. Enat All Akanda Vs. Meser All Sheikh (1974) 26 DLR 145.

 

—Proceedings u/s.144 were converted into those u/s. 145 on 60th day counting from the day on which notice under section 144 was issued—valid in law. Enat All Akanda Vs. Meser All Sheikh (1974) 26 DLR 210.

 

Conversion of proceeding to one section 145.

Conversion of a proceeding u/s 144 into one under section 145 during a period the former was in force is lawful. Gulam Ahad Vs. Samser Ali (1960) 12 DLR 801;PLD:(Dacca) 499, (1960) 10 PLR 816.

 

—Life   of   an   order   u/s.    144   and starting  of  proceedings  u/s.145.

Life of an order u/s. 144 having terminated on the 60th day of the order, both the rival parties claimed possession of the disputed land. The Magistrate in his order recorded that there was apprehension of breach of the peace and on that he can direct drawing up of proceedings under section 145.

 

The order of the Magistrate for drawing up proceeding u/s. 145, Cr.Procedurc Code, on his being satisfied from the submission of the parties to him that a dispute likely to cause breach of the peace exists, after the expiry of the order u/s.144, drawn up on police report, is valid in law. Alauddin Vs. Ansar Ali, (1954) 6 DLR 567.

 

Ss. 144 and 364When examination of a Magistrate who recorded confession becomes necessary. The confession or statement, as the case may be, will be admitted into evidence without examining the Magistrate in the Court. It is only when the Court finds that any of the provisions of section 164 or 364 Cr, P. C. have not been complied with by the Magistrate concerned then it shall take evidence of the concerned Magistrate. Emran Ali Vs. State (1986) 37 DLR 1

 

S. 144(I)(4)(5)(6)—Ex-parte orders may be made but with facts stated.

The expression "in the interest of public order'; is undoubtedly wider than the maintenance of public order but such a power can be exercised only in urgent cases, and cannot, in view of sub-sec. (6), remain in force for more than two months. It is true that in cases of emergency and in certain other cases the order may be promulgated ex-partc but the Magistrate shall have to set out the material facts in the order which is to be served, in the prescribed manner. Furthermore, in sub-sections (4) and (5) provisions have been made for rescission or alteration of the order by the Magistrate passing the order which is to be served in the prescribed manner. Oali Ahad Vs. Govt. of Peoples Republic of Bangladesh (1974) 26 DLR 376.

 

8.144(6) : Second order which is merely an extension of the period is in excess of jurisdiction— In case of necessity to meet further apprehension of breach of peace resort to provision in other parts of Part IV could be made. Oali Ahad Vs. Govt. of People's Republic of Bangladesh (1974) 26 DLR 376.

 

S. 145In deciding question of possession the Magistrate need not go into question of title. Ghulam Mustafa Vs. Abdul Karim, (1964) 16 DLR (WP) 27

—Superior Court,when will interfere on a finding of fact. The finding of a Magistrate on the , point of possession is a finding of fact in which case the High Court will not ordinarily interfere, but when the circumstances arc such which completely.

 

-S. 145

vitiate the finding of the trial Court, it is the . boundcn duty of the High,Court to interfere. Ghulam Mustafa Vs^ Abdul Karim, (1964) 16 DLR(WP) 27. 

 

—Cost, awarding of—In a proceeding under section 145 the Magistrate could not refuse awarding costs when he came to the conclusion that ,the first party is entitled to such costs and upon consideration of materials before him he can award a lump sum as costs to the first party. Dwijendra Nath Moitra Vs. Abdul Kashem Biswas. (1963) 15 DLR 340 1964 PLD (Dae) 298

 

—Computation of the period of starting point.

Period of two months referred to "in first proviso is to be computed u/s. 145(1) from the date of passing preliminary order and not from the date of complaint. Gulam Mustafa Vs. Abdul Karim (1964) 16DLR(W.P)27.

 

—In deciding question of possession the Magistrate need not go into question of title. Gulam Mustafa Vs. Abdul Karim (1964) 16 DLR (WP) 27.

 

Superior Court when will interfere on a finding of fact.

The finding of a Magistrate on the point of possession is a finding of fact in which case the High Court will not ordinarily interfere, but when the circumstances are such which completely vitiate finding of the Trial court, it is the boundcn duty of Ihe High Court to interfere. Gulam Mustafa Vs. . AbdurKarim (1964) 16 DLR (WP) 27.

 

7-Cost, awarding of—In a proceeding under section 145, the Magistrate could not refuse awarding costs when he came to the conclusion that the first party is entitled to such costs and upon consideration of materials- before him he can award a lump sum as costs to the first party. Dwijendra Nath Moitra Vs. Abdul Kashem Biswas (1963) 15 DLR 340 :1964 PLD (Dacca) 298.

 

—Order to draw up proceedings under section 145 and directing the case to be transferred for disposal : held - Illegal. Raisur Razzak Vs. Abdur Nur (1950) 2 DLR 27.

 

—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the Civil Court. Ilarunor Rashid Haider Vs. Entaj Sheik (1983)35 DLR 286.

 

—Possession on the date of the preliminary order—The Preliminary order under section 145 was recorded on 29th May, 1950. The finding that a certain party was in possession on 4th November, 1948, was absolutely immaterial for the decision of the case. What the Magistrate should have found was as to who was in possession of the property on the date when the preliminary order, viz the order dated the 29th May, 1950, was passed. PLD 1955 (Pesh)31.

 

—Party out of possession can not invoke the provisions of section 145 Cr. P.C. Provision of section 145 Cr.P.C. do not permit a party to recover possession of the proceeding land nor the Magistrate has any such power under the said section. A.B.M. Hassan Kabir Vs. Umesh Chandra Dey. (1984) 36 DLR 18.

 

S. 145 has no application here—the parties claim joint possession in the disputed lands as co-sharers but where one of the parties claims to have and is actually found to have exclusive possession adverse to the other party the mere fact that the other party sets up a title to joint possession does not render section 145 inapplicable. Md. Askir Mia Vs. Md. Ayub Ullah (1970)22 DLR 705.

 

S. 145 deals only with possession. Parlies in possession or persons claiming to be in possession are only the necessary parties in the dispute. Shahabuddin Vs. Yunus (1969) 21 DLR 175.

 

— Appointment of a receiver, and simultaneously pass an order for drawing up proceedings u/s. 145 illegal. Shamsul Alam Vs. Kanak Chandra (1978) 30 DLR 212.

 

S. 145

—Power to order attachment when can be exercised. Shamsul Alam Vs. Kanak Chandra (1978) 30 DLR 212.

 

—Whether dispute can be referred to arbitration—goods lying on the immovable property attached, such goods are subject to such attachment. 1957 PLD(Kar) 214.

 

—Attachment of disputed property— An arrangement for its preservation— Receiver of the attached property acts as an officer of the attaching court.

Attachment creates an obligation to take care of the property attached and it is within the powers of the Magistrate to make such arrangement as may be deemed proper in the circumstances for the preservation or management of the property. A person so appointed, can not have the wide powers of the Receiver, his possession would be rather that of an officer of the Magistrate making the attachment. Sultanuddin Ahmed Vs. Mulshed All (1977) 29 DLR 73.

 

—On the basis of petitions filed by a party the Magistrate, if satisfied, can attach the property in dispute. MusharafAli Vs. Zahir Ahmed (1977) 29 DLR 412.

 

—Two ways of dealing with a property attached u/s 145 proceedings.

Where a proceeding under section 145 of the Code has been dropped two courses are possible. One is to order release of the property from the attachment without directing delivery to either party and the other is to order that attachment shall continue until the question of title has been decided by the Civil Court.

 

Money, being the sale proceeds of the usufruct of the attached land, in a proceedings u/s. 145— Receiver appointed by the Court deposited the money with the Court—Magistrate has no power to hand over the money received to any one of the contending parties until the question which party is to get the money is decided by. Civil Court—A party taking the money should be directed to refund the same in the manner provided by S. 547 Cr.P.Code. Bhowal Raj Estate Vs. Md. Chand Mia

(1978) 30 DLR 4&5.

 

—-Report of local police regarding breach of the peace over the disputed land not infallible.

Report of the local police is not the only source of a Magistrate's information nor is a Police report infallible. As it appears from the learned Magistrate's order itself, the Asstt. S.I. of Police submitted a report showing that there is no longer any apprehension of breach of peace, whereas the O.C. of the P.S. submitted a report showing the apprehension of breach of the peace. The learned Magistrate has of course given reasons for rejecting the report of the A.S.I, of Police. Abdul Farah Molla Vs. A.K.M. Mozammel Huq Sikder (1975) 27 DLR 260.

 

-—Magistrate's jurisdiction ousted where the disputes concerning the land is finally decided by a civil court. Abdul Farah Molla Vs. A.K.M.Mozammel Huq Sikder (1975) 27 DLR 260.

—Exercise of power under S.145-1-Magistrate should be very careful.

The principle of law evolved under section 145, Cr.P.Code is well established and a Magistrate while exercising the immense power,quasi-judicial in nature, given him by this section, must be very careful lest a party use this provision of law as an instrument either to create evidence of his possession where he has not got any or throw another party out of possession. Abdul Farah Molla Vs. A.K.M. Mozammel Huq. Sikder (1975) 27 DLR 260.

 

—In hearing a proceeding case under section 145 of the Criminal Procedure Code summons procedure is to be followed. In the present case two P.Ws. were examined on behalf of the first party and on the date on which they were examined the second party was absent. Subsequently, the second party made a prayer for cross-examining the witness and on their prayer an opportunity was given on the second party to cross-examine the P.Ws. But that does not mean that the Magistrate followed warrant procedure in the case. Jafar Ahmed Khandaker Vs. Badiul Sikder. (1974) 26 DLR 437.

 

—In a dispute u/s,145, Court solely concerned with the question of

possession.

 

In an enquiry in a proceedings under section 145 'Criminal Procedure Code, the main question relates to the factum of possession of the disputed land. Mrs. Masawood Vs. Md. Meah. (1974) 26 DLR

no.

 

—Satisfaction of the Magistrate from whatever source it be about the existence of breach of peace is enough for him to draw up proceedings under sec. 145. Sultanuddin Ahmed Vs. Murshed AH (1977) 29 DLR 72.

 

—Orders passed under sec, 145 are admissible for certain purposes.

Orders passed under section 145 Cr.P.C. are admissible in evidence on general principles as well as under section 13 of the Evidence Act to show who the parties to the dispute were, what, the land in dispute was and who was declared to be entitled to possession. Maharuddi Fakir Vs. Jogendra Kishore Nag. (1975) 27 DLR 398.

 

—Attachment of the disputed land on his own motion is itself an indication of the Magistrate's satisfaction.

Attachment of the land itself signifies that the Magistrate considered the case one of emergency for which he attached the land." No application for attachment from any quarter is necessary for passing order of attachment. Sultanuddin Ahmed Vs. Murshed All (1977) 29 DLR 72.

 

—Object of sec. 145 is the prevention of disputes as to immovable property likely to cause a breach of peace and the words used "a dispute likely to cause a breach of peace exist concerning any land or water or the boundaries thereof are wide enough to cover all kinds of disputes not only disputes as to the facts of the possession but also disputes as to the right to possess or the right to own or use immovable property if they are likely to cause a breach of peace. Sultanuddin Ahmed Vs. Murshed AH (1977) 29 DLR 72.

 

—Object of sec. 145 is prevention of likelihood of breach of Peace over a land regarding its actual

possession or the right to possess or own such land, etc, Ezhar Miah Vs. Hajee Nurul Islam (1977) 29 DLR 386.

 

—Magistrate's power taken away regarding the question of disputed property's possession, if Civil Court had decided that question. If the Civil Court has already passed an order regulating the possession of the disputed property, the Magistrate is not entitled to exercise the power u/s. 145 of the Code. Ezhar Miah Vs. Hajee Nurul Islam (1977) 29 DLR. 386.

Requisite Conditions—The basic conditions for a proceeding under section 145 is the existence of a dispute concerning any land, etc, between two rival claimants, even though they happen to be co-sharers, which is likely to cause a breach of the peace. The fact that both the parties may be found in joint possession at the conclusion of an inquiry is not a matter to be considered at the time of the preliminary order. Naju Mid Vs. A.S. Shafiuddin (1956) 8 DLR 408.

 

, —Magistrate can ignore the views expressed in the police report by the police. Naju Mia Vs. A.S. Shafiuddin 8 DLR 408.

 

—When proceeding under the section should be quashed.

The Magistrate's jurisdiction under section 145 Cr.P.C. depends upon there being a dispute likely to cause a'breach of. peace. Unless the Magistrate is satisfied from a police record or otherwise that there exists a dispute which is likely to cause a breach of the peace, he cannot assume jurisdiction and proceed under that section.

 

When these essential ingredients of section 145. of the Criminal Procedure Code arc not satisfied, the proceedings under that section should be quashed. Fakruddin Khan Vs. State, (1968) 20 DLR 575,

 

—The danger of a breach of peace must continue till the time of the final order and where there is no danger at any point of time of any further breach of public peace taking place, the proceeding should be put an end to. ArabindaBhattacharjee Vs. Abdur Rahman (1968) 20 DLR 379.

 

—Omission by a Magistrate in a complaint under section 145 Cr.P.C. to draw up the,necessary original order under section 145(1) and to affix its copy at the spot under section 145(3) vitiated all the proceedings and the final order passed therein is liable to be set aside—Such material irregularly not curable under section 537 Cr.P.C. Kitab Gul Vs. Niaz Muhd., (1969) 21 DLR (WP) 212.

 

—Does not contemplate dispute between a party claiming joint possession and another contesting it. Syed Zaman Khandakar Vs. Zubeda Khatun (1973)25 DLR 317.

 

—Magistrate's order under section 145 Cr.P.C. without stating his satisfaction giving grounds about the likelihood of breach of peace—renders the order illegal. Mohd. Bakhsh Vs. Haji Muhammad & 'Hie State (1969) 21 DLR (WP) 119.

 

—Source of information : The section does not put any limitation as to the source of information on which a Magistrate could take action. He can take into consideration the background of a case, the basis of the proceedings under section 144 and also the arguments advanced. Helaluddin Vs. FulBahar (1956) 8 DLR 397.

 

—Failure to service notice : Failure of Magistrate to require notice to be served on the members of the 2nd party is a vital defect. If there had been any error in the notices served, the defect might be cured under section 537 provided the error has caused no failures of justice. Serajul Islam Vs. Abdur Rouf (1951) 3 DLR 202.

 

—Court was justified to attach the disputed land in the present case when it found there was likelihood of breach of peace over the land, both parties claiming possession thereof and appointed Nazir of the Court as Receiver of the disputed property. Md. Abu Daud Gazi Vs. Anil Kumar Sarkar, (1984) 36 DLR 345.

 

—Omission to comply with condition of jurisdiction is not a mere irregularity' but -it is illegal. Nesaruddin Vs. Khalilur Rahman (1981) 33 DLR 93.

—Omission to record ground of satisfaction is not a mere irregularity but an illegality—Magistrate takes action on an application u/s. 145 by proceedings on the information received. This does not mean he was satisfied that a breach of peace is likely. Nesaruddin Vs. Khalilur Rahman (1981) 33 DLR 93.

 

—Without any finding that there is no apprehension of breach of peace concerning the land in question the Magistrate can not drop the Proceeding. Moulana Syed Ahmed Vs. Nurul Islam (1979)31 DLR 13.

 

—Without materials to show that apprehension of breach of peace ceased, order abating proceeding u/s 145 improper.

In a proceeding under section 145 of the Code of Criminal Procedure the learned Magistrate ought not to have gone into the question of title. He was required to decide whether any and which of the parties was at the site when the preliminary order to possession was passed as required u/s. 145(4) and for this purpose, he was required to take evidences adduced by the parties. In this case there was no material before the learned Magistrate to show that apprehension of the breach of peace ceased to exist. As such the learned Magistrate was not justified to pass order abating proceedings which was drawn up under section 145 of the Code of Criminal Procedure. Nurul Hasan Vs. Kherode Sarkcr (1980) 32 DLR 96.

 

—Apprehension of breach of the peace when apparent—Magistrate's interference is called for—Magistrate however not to pass final order till civil court decides.

 

It is to be remembered that the prayer for injunction regarding possession of the land was not granted, though there is no specific refusal cither. In such circumstance, if there is a serious apprehension of breach of peace which is apparent from the record, the exercise of the Magistrate's jurisdiction is called for.

 

Ends of justice would be met, if the Magistrate is directed not to pass any final order regarding possession till the disposal ,of the suit by the trial Court.Bdnabir Purkayastha Vs. AlekjanBibi (1982) 34 DLR (AD) 98.

 

—Court is concerned only with possession of immovable property and not with questions of title or incidental right. 7957 PLD(Pesh.) 147.

 

—Principal objects of section 145 Cr.P.C.—explained.

Principal object of sec. 145 Cr.P.C. are two fold : (I) to prevent the breach of peace over land or water, (2) to restore the possession of the same to the party found to have been forcibly and wrongfully dispossessed within two months next before rnaking the preliminary order under section 145(1} O.P.C. irrespective of its right to possess. The question of title having been left to the Civil Courts for determination. Dr. Akhtar All Vs. The State (1970) 22 DLR (WP) 307.

 

—Satisfaction of Magistrate about probability of breach of peace necessary for conferring jurisdiction under this section-It need not be stated in express words. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.

 

—The expression 'apprehension of breach of peace' recorded in the Magistrate's preliminary order—Non-recording of such finding in the final order is an irregularity curable under section 537 Cr.P.C. and not an illegality. Alt llossain Vs. Sayedur Rahman (1969) 21 DLR 410

 

—Magistrate must consider both oral and documentary evidence to pass an order under section \45.JabbarAli Gazi Vs. State (1969) 21 DLR 199.

 

—When   there   is   chance   of  contrary decisions—order   u/s.   145   should   not   be

passed. As no stay order was passed in staying operation of the order of learned Subordinate Judge allowing the prayer of temporary injunction which is still in force, chance of contrary decision in the case under section 145 Cr.P.C. cannot be altogether ruled out and to avoid such a situation the proceedings under section 145 Cr.P.C. should not be allowed to be continued. Abdur Rahman Munshi Vs. Stale (1980)32 DLR 302.

 

—Upto the time the enquiry begins, parties may be added. If they are added afterwards, it is an irregularity, but it is not necessary to initiate fresh proceedings, although evidence previously taken out, if the parties added require it, to be again taken m their presence. Nasiruddin Vs. Akbar All (1957) 9 DLR 156.

 

—Effect of• addition of parties—Where there has been an addition of a party after the initiation of the proceedings, there is no necessity for fresh proceedings, if the party added was concerned originally in the dispute, which is the foundation of the proceedings. Nasiruddin Vs. Akbar Mi-(1957) 9 DLR 156.

 

—Magistrate can ignore the views expressed in the police report by the police. Naju Mia Vs. A.S. Shafiuddin (1956) 8 DLR 408.

 

—Cond'tion necessary to draw up proceeding u/s. 145—The fact that both parties may be found in joint possession at the conclusion of the enquiry is not a matter to be considered at the time, of preliminary order. Naju Mia Vs. A.S. Shafiuddin, 8 DLR 408.          

                ,

—Service of preliminary order on both the parties mandatory, failure of which renders the proceeding null and void. Khirod Chandra Saha Vs. Mqfazzal llossain (1967)19 DLR (Dae) 48.

 

—Proceedings under section 145 Cr.P.C. initiated at the instance of the servant on behalf of his master not illegal—Master may join later on his own motion or Magistrate can take initiative in the matter after passing the initial order. AH Ahmed Vs. Maniruzzaman (1970).22 DLR 857.

 

—Dispute giving rise to apprehension of breach of peace must be found to exist when the opposite party appears and joins issue. Syed Zaman Khandakar Vs. Zubeda Khaturi(1973) 25 DLR 317.

 

—For assumption of jurisdiction and passing orders under section 145 all that is necessary is existence of dispute likely to cause breach of the peace—Magistrate's satisfaction about that from police feport, enough—Examination of witnesses not necessary. Sudhanshu Kumar Dey Vs. Abdul Aziz (1973) 25 DLR 322.

 

—Proceedings by servant of the owner of the land would not lie—Servant is not in the same position as a Manager—an order under section 145 declaring possession of a person not a party is illegal. All interested persons should be made parties. Aposh All Vs. Amjad Alt Bhuiyan (1958) 10 DLR 248.

 

—Grounds of satisfaction: Magistrate's order ran to the effect: "Heard both parties. Both parties claim possession............................... As apprehension of a breach of the peace still exists, I draw up proceedings under sec. 145 Gr.P.C. ............................The disputed plots are attached The proceedings drawn up in pursuance of the order, however, did not specifically disclose the grounds of satisfaction. It was thereupon contended that the provisions of sec. 145 which required stating the grounds of satisfaction not being complied with', the proceedings drawn stand vitiated.

 

Held: In the circumstances of this case, the omission to set out the grounds is curable under sec. 537, Cr.P.C. Hdaluddin Vs. Ful Bahar (1956) 8 DLR 397.

 

—Attachment and appointment of a receiver.

The power to attach carries with it the power to appoint a receiver. But this power should be very sparingly used. Naju Mia Vs. Shafiuddin (1956) 8 DLR 408.

 

—Goods lying on the immovable property attached, such goods are subject to such attachment. 1957 PLD (Korj 214.

 

—Magistrate concerned may drop the proceedings started u/s. 145 if in his opinion there is no dispute or no likelihood of breach of peace without further enquiry but where threat to peace exists he should find out who is in actual possession and put that party in possession by his order.

 

The point is whether the learned Magistrate while directing the Receiver to hand over the sale-proceeds to the first opposite party acted legally or otherwise.

 

A proceeding under section 145 of the Code of Criminal Procedure is ^iot a proceeding to decide disputed question of title. An enquiry under section 145 of the Code of Criminal Procedure is limited to the question as to who was in possession in fact at the relevant time. If the Magistrate finds that there is no dispute or there is no likelihood of the breach of peace he may drop the proceedings without further enquiry but if the Magistrate finds that threat to the peace still continues he nccdsto continue and find as to who was in possession to the exclusion of the other parly. He should then pass a final order declaring that such a party is entitled to possession until evicted in due course of law which means by a decree of a Civil Court.

 

Law requires the other party who had not been found in possession to establish his right and title, if any, in the disputed property before the civil court and to get recovery of possession thereafter in due course of law. Until that is done the order of the Magistrate passed u/s. 145 of the Code as to the right to possess is final. Md. Hossain Vs. Kalachand. (1983) 35 DLR 229.

 

—Conversion of a proceeding under section 144 into one under section 145 during a period the former was in force is lawful. Gulam Vs. Samser AH (1960) 12 DLR 801=(1961) PLD (Dae) 49.

 

—Court is concerned only with possession of immovable property and not with questions of title or incidental rights. 9 PLD (Pesh.) 147.

 

—Proceedings by a servant of the owner of the land would not lie—Section 145 is not intended to apply to servants in the absence of their master and any order made in such circumstances is illegal. (1958)10 DLR 248.

 

—Declaring possession of a person who was not a party who are to be made parties—Any order under section 145 declaring the possession of a person who was not a party and who never appeared at any stage of the proceedings is bad the peace, all concerned in the dispute and likely to cause breach of the peace should be made parties in a proceedings under sec. 145, irrespective of the question of ultimate decision. (1958)10 DLR 248.

 

—Whether dispute can be referred to arbitration—Goods lying on the immovable property attached, such goods are subject to such attachment. 9 PLD(Karachi) 214

 

—Exclusive possession in partnership business cannot be claimed—proceeding under section 145 in such cases would not lie. Abdus Salam Vs. Abdul Kader(1965)17DLR252.

 

—Pendency of civil suit no bar to the institution of proceedings u/s. 145 Cr.P.Code. Pendency of a civil suit is no bar to the institution of proceeding u/s. 145 Cr.P.C. if the Magistrate is satisfied that there is immediate apprehension of the breach of the peace. Nader All Sheikh Vs. State (1983) 35 DLR 180.

—Civil court when already in seisin of the subject-matter in dispute, and has passed order regulating its possession, etc. criminal court's jurisdiction u/s. 145 Cr.P.Code to interfere with such matter regarding possession, etc. ousted and as such an order of attachment u/s. 145 is illegal. Md. Shahabul Huda Vs. Md Shafi. (1984) 36 DLR (AD) 44.

 

—Person in possession of the disputed property cannot be ousted during pendency of section 145 proceeding. Md. Shahabul Huda Vs. Md. Shafi. (1984) 36 DLR (AD) 44.

 

Ss. 145 & 107Proceeding in respect of the disputed land while pending u/s.145 Cr.P.Code in the Magistrate Court, the 1st party filed an application u/s. 107 of Code and the Magistrate there-upon directed the 2nd party to execute a bond of 2000/- (aka for good behaviour for one year. Thus, two-fold order was passed against the 2nd party, one u/s. 145 not to enter the disputpd land and another to execute bond u/s. 107,' Proceedings u/s. 145 & 107 are different and independent of each other. The Magistrate, however, is competent to act u/s.107 if he is satisfied that any party to ,lhc

 

proceeding u/s. 145 is likely to commit breach of peace and on such satisfaction may bind down the person who is likely to commit breach of the peace. Execution of a bond u/s. 107 is a separate proceeding from one under u/s. 145—Procedure to be followed in case of proceeding u/s. 107 whereby provision under sections 112, 108 and 110 shall have to be complied with. Non-compliance with the provision of section 107—Show cause notice as provided in sub-scc.(I) of s.107. Mandatory, which cannot be dispensed with—In case of imminent breach of peace Magistrate, as provided in s.114, may issue warrant for arrest of a person. Sultan Ahmed Vs. Hazi Sultan Ahmed. (1982)34 DLR (AD)'352.

 

Ss. 145 and 146Sections 145 and 146 Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is likelihood of breach of peace over immovable property. Section 146 cannot be separated from section 145. It can only be read in the context of s.146. The scheme shows once a proceeding has begun with preliminary order it must be followed up by an enquiry and end with final order. There is no question of slopping in the middle unless the Magistrate is satisfied that the breach of peace does not exist whereupon the magistrate cancels his preliminary order! In other words, once a preliminary order is passed it must run its full course. A rcvisional court can stop course only in exceptional cases. What arc those circumstances will depend on the facts of each case. Shahjahan Vs. Sessions Judge (1986) 38 DLR (AD) 246.

 

Ss. 145 and 537—The Barisal Bench came to the conclusion in a cryptic manner, no doubt that the first party failed to establish a prima facie case of their locus slandi to initiate a proceeding under section 145 Cr.P.C. In view of this conclusion there is no hesitation in saying that-though the Sessions Judge prematurely intervened, passed the order correctly and legally and any such irregularity is curable by the provisions in section 537 CrJP.C. (1986) 38 DLR (AD) 246.

 

S.145(lV-Initiation    of    proceedings

Magistrate may form his opinion and initiate proceeding on any information received even without examining any witness. Dilbaz Khan Vs. State (1959) 11 DLR (WP) 86 : (1958) PLD (Lah.) 264.

 

8.145(1)—No witness need be examined before making the preliminary order. The preliminary order attaching the disputed property, without examining any witness is valid. In view of the provisions of subsection (1) of section 145 it is not necessary for Magistrate to examine any witness before making the preliminary order. Gulam. Mostafa Vs. Abdul Karim (1964) 16 DLR (WP) 27.

—If other elements arc present, mere omission to state the grounds of his being satisfied as to breach of peace, is curable under law. Magistrate need not pass the order of restraint once the property is attached and a receiver appointed. Jamita Mannan Vs. Aminur Rasul alias Farid Mia (1984) 36 DLR 31.

 

—Circumstances of the case showed likelihood of the apprehension of breach of peace, though the Magistrate used the words "will be" inadvertently— Order passed on such a situation quite valid. Musharaf All Vs. Zahir Ahmed (1977) 29 DLR. 412.

 

—Preliminary order under section 145(1) can only be passed when there is apprehension of breach of the peace. Existence of the apprehension of the breach of the peace is sinequa non for the making of the preliminary order under sub-section (1) of section 145 and it must continue to exist all through till the time of passing of the final order. Kalu flowlader Vs. Aminuddin Talukdar (1976) 28 DLR 430.

 

—Sub-section (I) and the 2nd proviso in sub-section (4)—-Difference between the two explained in terms of .Magistrate's power to take necessary steps.

 

Under sub-section (1) of section 145, the Magistrate is to be satisfied on a police report or other information whether there is a likelihood of breach of peace over any immovable property, and upon such satisfaction, he will order the drawing up of proceedings. His satisfaction under this sub-section need not be postponed till the notice of an application for making such an order has been served upon the parties concerned. His exercise of mind as to whether breach of peace is likely is different from that as to whether there is an existence of an emergency which would require an order of attachment of the property in dispute under the second proviso to sub-section (4) of section 145. Different consideration would apply in finding out (1) whether there is likelihood of breach of peace and '(2) whether there is an emergency for passing an order of attachment. The former being more urgent the Magistrate has been empowered to draw up his preliminary order under sub-section (1) without even hearing the parties. The latter does not contemplate an order of attachment on an ex-partc application which can well be deferred till the parties claiming interest in it have been notified of the fact in the preliminary order. Md. Fazlul Karim Chowdhury Vs. Abdux Subhan Chowdhury (1974) 26 DLR 291.

 

—Expression "parlies concerned" appearing in section 145(1) Cr.P.C. means all persons claiming to be in possession at the time of the initial order under sub-scction(I) of section 145 Cr.P.C. AH Ahmed Vs. Maniruzzaman (1970) 22 DLR 857.

 

—Provision of section 145(1) not followed—order of attachment and appointment-of Receiver illegal.

The learned Magistrate who passed the impugned order did not make any finding that he was satisfied about existence of any dispute likely to cause apprehension of breach of peace staling the ground of his satisfaclioh regarding existence of the breach of peace. He did nol pass any order for drawing up proceedings requiring ihe parlies concerned to put their writlen slatements as required under sub-section (1) of s.145. Nasiruddin Vs. Khalilur Rahman (1981) 33 DLR 93.

 

—Statement of grounds of satisfaction initially is to keep the parlies informed and to put in their defence. If grounds cxisl for passing order of allachmenl, non-recording of them docs not viliate ihc order. Nasiruddin Vs. Khalilur Rahman (1981) 33 DLR 93.

 

—S. 145(1) : Failure to pass an order as required by section 145(1)—not a ground to render the proceedings null and void. Abdur Rahim Vs. , Malik Wahid Bakhsh. (1971) 23 DLR (Lah) 3.

 

—"Actual possession" means actual physical possession. Md. Yasin All Vs. Abdur Razzak (1978) 30 DLR 191.

 

—When servant possesses the properly in the temporary absence of the master, he cannot say he is in actual possession as contemplated under sec. 745. Md. Yasin Ali Vs. Abur Razzak (1978) 30 DLR 191.

 

—Agent, caretaker or a servant can possess the property in dispute on behalf of the principal or master, vis-a-vis a 3rd party. In such a circumstance mere physical possession cannot be treated as an actual possession as against the master. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

—Dispute, its connotation—Law will protect the party who is in possession. — Possession taken in defiance of law will not be allowed. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

—Actual possession means exclusive possession: object of S.145 is to maintain and preserve public peace. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

S 145(1)Filure to state in the final order that an apprehension of the breach of peace exists— not final. Abdur Rahim Vs. Malik Wahid Bakhsh (1971) 23 DLR (Lah.) 3.

 

—Cinema film : Although the expression "land or water" includes buildings, it is obvious that where the dispute was not concerning the building of a cinema but concerning the film that was to be exhibited in it. Held: The case is not covered by section 145. 2 PLD (Lah) 124.

 

—Bonafide right to the property.

The section could be invoked where contending parties are not in actual possession but have a

bonafide right to succeed to the subject of dispute. / PLD (Lah.) 397.

 

Ss.145(1) & 146(1)Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam Ali Vs. State (1975) 27 DLR (AD) 37.

 

S. 145(1)(4)Applies to disputes over lands in joint possession (1953) PLD (B.J.) 59.

 

—S.145(I)(5)—Proceeding    drawn    up under   section   145(1)   cannot   be   dropped unless "  provisions     of     sub-sec.     (5) .complied   with.

f Proceeding once drawn up under section 145(1) of the Code cannot be dropped unless the provisions of sub-section(S) of the Code, which runs as follows, are complied with.' "When the parties have compromised their dispute or the person intiating the proceeding has given up his claim of possession or when the Magistrate is satisfied that the apprehension of breach of peace which was the sine qua npn for drawing up a proceeding has ceased to exist." Md. Ibrahim Vs. Mukbul Ahmed, (1970) 22 DLR 128.

 

Preliminary order to be cancelled when no dispute exists—There can be no justification for restricting the power of cancellation of preliminary order under section 145(1) to only cases where the parties have compromised their dispute or the person initiating the proceedings has given up his claim to possession. The sub-section imposes no such restriction. Where any party to the dispute or any other person interested has appeared and denied that any such dispute exists or ever existed then he is entitled to lead evidence to establish his contention, and if the Magistrate comes to the conclusion that no such dispute exists or existed, then the Magistrate is not only entitled but is also bound to cancel the preliminary order. Provisions of section 145 indicate that there should be a continuing danger of a breach of peace till the time the final order is made. Manzoor Elahi Vs. Bishambar Das (1964) 16 DLR (SC) 246.

 

8.145(3)—Service of the order, Consequence of non-service—Failure of service of the order under sub-section on the person and its publication at a conspicuous piace does not render the proceedings illegal, if no prejudice is caused. It is necessary that the Magistrate should act in strict compliance with sub-section (3) of section 145 regarding service of the order in order to avoid any such question being raised. Gulam Ahad Vs. Samser All (1960) 12 DLR 801 : (1961) PLD (Dae.) 499: (1960) 10 PLR 816.

 

—Copy of the order not servedParties present—If all the parties interested in the dispute, in a proceeding under section 145, appear and the enquiry is held in their presence, the order of the Magistrate cannot be impugned on the ground that copy of the order was not served upon the proceeding land and the parties. Entakuddin Vs. Sk.Yaqub 3 DLR 327.

 

S.145(3)(4) : Magistrate is not justified in taking action under section 145(4) CrP.C. when the fact of pendency of civil litigation between the parties over the disputed property is brought to his notice and especially when security proceedings over the same are pending in his court—Circumstances under which Magistrate is not empowered to take action under section 145 Cr.P.C. discussed. Ghulam Habib Vs. The State (1976) 28DLR(WP) 11.

 

8.145(4) & 146 : Violation of an order or decree of Civil Court passed in respect of a property in a suit is an offence which is not a "dispute" within the meaning of section 145 and such violation docs not attract section 145—In such case violators are liable for contempt of Court. Shah Muhammad Vs.'Huq Nawaz, (1971) 23 DLR (SC) 14.

 

Ss. 145(4) &   146   :   Civil   suit   when pending about the disputed land.

Because of a civil suit regarding the question of title and possession of the disputed land is pending in a Civil Court it is no bar for a Criminal Court to enter and decide the question of possession as envisaged under section 145 Cr.P.Code. Pran Ballav Sutradhar Vs. Shamsul Huq (1970) 22 DLR 662.

 

8. 145(4) and S. 146 : If possession is  I found with one party sub-s.(4) of s.145 will apply. If no decision can be arrived at as to possession, s. 146 will apply. Jamila Mannan Vs. Aminur Rasul, (1984) 36 DLR 31.

—8.145(4) : Attachment of property under section 145(4)—Man appointed to the custody of the property is an agent of the Court and works under its direction. Abul Hashem Dewan Vs. S.D.O. Madaripur, (1968) 20 DLR 22.

 

8.145(4)     :     Question     as    to    the attachment   of   disputed   property   either I u/s.   145(4)   or   u/s.!46(I)   is   one   for the Magistrate  to  decide.

The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-seclion(4) of section 145 or sub-section(I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facts and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-. section(I) of section 146 of the Code in pursuance of direction 'given by the High Court. That direction calling upon the learned Magistrate to attach the I land once again, if it had already been released, was, however, not a proper direction. Adam All Vs. State (1975) 27 DLR (AD) 38.

 

—Satisfaction referred to in sub-sec. (4) of S. 145 of -the Code is the satisfaction of the Magistrate. His satisfaction cannot be replaced by that of a Court in Revision. The learned Magistrate on consideration of relevant facts and the Police report was not satisfied that "there was no likelihood of breach of the peace." In the circumstances we do not see any reason to interfere with his order. Abdul Farah Molla Vs. A.K.M Mozammel Huq (1975) 27 DLR 260.

 

__.—Magistrate u/s 145(4) is called upon to decide which of the parties was in possession of the disputed land on the date of passing the preliminary order under sub-s. (4). Musharaf All Vs. Zahir Ahmed (1977) 29 DLR 412.

 

—Question of possession to be decided by the Magistrate.

Whether they are in possession or not will be decided by the Magistrate after taking evidence as required under sub-section(4) of section 145 Cr.P.C. Sullanuddin Vs. Murshed Ali (1977) 29'DLR 73.

 

—"2nd proviso—Expression "at any time" explained—

Since the power to make an order of attachment is contained in the second proviso to sub-section (4) of section 145, Cr.P.Code its exercise is restricted to a situation which obtains only after the provision of sub-section (3) have been complied with. The expression "at any time" used in the proviso is referable to a point of lime which begins after a copy of the preliminary order made under sub­section (1) has been served upon the parties. On the contrary, if the expression is considered to have reference to the point of t;me when the preliminary ordcr'is or about to be passed undcr-sub-scction (I) this would lead not only to the violation of one of the principles of natural justice but would also contravene the express provisions of sub-sec. (3) of section 145 which have expressly incorporated this principle. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974)26 DLR 291

 

—Emergency, referred to in the 2nd proviso to S. 145(4) relates to control of the property in dispute and not to breach of the peace.

The emergency referred to in the 2nd proviso to S. 145(4) merely relates to control of the property in dispute and not to the breach of peace likely or which has already arisen. The oft-repealed apprehensions that unless ihe Magistrate is found to possess the power to atlach property in dispute as soon as he passed the preliminary order under sub­section (I), he may not be able to prevent the breach of peace arc without any foundation. If the breach of peace is so imminenl as lo lead to immediate loss of lives and breaking of heads, if the sole aim is hot to allow the breach of peace over any immovable property, the Magistrate has, under the Code of Criminal Procedure, ample powers to lake appropriate preventive measures relating to the same. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974) 26 DLR 291.

 

—Auction  of the  proceeding lands—A

court or public servant or any person who holds auction of any property has the power and jurisdiction to lay down the conditions of auction. A court of law may only see that the condition or condilions are not unconscionable, illegal or unreasonable. Abdul Hamid Vs. The State (1981) 33 DLR 399.

 

—Steps which the Sub-divisional Magistrate may take for custody and management of the land attached.

After attachment of the proceeding lands under the second proviso to section 145(4) the Sub-Divisional Magistrate had lo lake steps for proper custody and maintenance of the proceeding lands. The effect of an attachment under ihc second proviso to seclion 145(4) is lo bring the property under the control of the Magistrate. He may lake such steps as he ihinks fil for ils proper custody and management in order to prolccl ihc interest of the property attached. He may grant lease of ihc property by public auction so as to continue to earn for the property an income. If he slipulalcs thai ihc bid money already deposited will be forfeited if ihe balance of ihc auction money is nol deposited by the highesl bidder within ihc lime granted then it cannot be said that he has put a condition either illegally or unreasonably. Abdul Hamid Vs. The Stale (1981) 33 DLR 399.

 

S.  145:  2nd  Proviso  to sub-sec(4).

Per Justice Badrul Haider Chowdhury (with whom Justice Amirul Islam Chowdhury concurred). Order of attachment can be passed at any moment when the case is pending before Ihe Magistrate if Ihc Magislrale is satisfied lhal .emergency of ihe situation demands that. It is not necessary lhal notice must be served on the parlies to appear and submit statement. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.

 

—Per A.T.M.Masud. J. (dissenting from the majority view) Magistrate is not empowered to pass an order of atlachmcnl under the 2nd proviso withoul: compliance wilh the provisions of subsection(3). of seclion 145 Cr.P.C., i.e. before serving copy of the order on ihc parlies concerned. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.

 

Party's possession is to be determined after compliance with the provisions of sub s. (4) of s. 145— Decision of the question of possession without hearing the 2nd party is illegal.

- Under sub-section (4) of section 145 Cr.P.C. the Magistrate is to enquire as to possession of the parties receiving all such evidence as may be produced by them and if necessary on taking such further evidence as the learned Magistrate thinks proper. It is after complying with all the mandatory provisions of sub-section (4) of section 145 Cr.P.C. that the learned Magistrate is to decide which of the parties was in possession of the disputed property at the date of the order of drawing up the proceedings. Osman Gani Vs. Beshamddin Ahmed (1980) 32 DLR 53.

 

8.145(4) : Two months' limit: The proviso to sub-section(4) of section 145 must be construed literally. If the party is found to have been forcibly and wrongfully dispossessed on a day outside two months next before the dale of the order, then the proceedings must be dropped. Debendra Vs.Khandaram(1951)3DLRH9.

 

—Dispute over possession—Police report about possession not admissible in evidence. Syed Zaman Khandakar Vs. Zubfda Khatun (1973) 25 DLR 317.

 

Ss.l45(4) & 146—Appointment of receiver—When can be made. Attachment of property can be made at any stage of the proceeding under section 145(1) Cr.P.C. provided the Magistrate considers the case one of emergency but appointment of receiver can only be made after an enquiry is held under section 145(4) and when the conditions laid down in section 146 Cr.P.C. exist, that is, if the Magistrate decides that none of the parties was then in possession or unable to decide which of the parties thereto was then in such possession. Asghar Vs. The State. (1970) 22 DLR (WP)305.

 

—Receiver, if can be appointed under section 145—Appointment and power of a receiver appointed under section 146.

Section 145 is silent about the appointment of receiver. Even though no prohibition can be spelt out, there is no provision for his appointment until the stage of section 146 of the Code is reached. A Magistrate while holding an enquiry under section 145 may, however, "attach the subject of dispute pending his decision under this section," as laid down in the second proviso to sub-section(4) of section 145.

The appointment of a receiver under section 146 of the Code takes place when after full enquiry under section 145, a Magistrate reaches the conclusion that none of the parties was in possession of the ' disputed property or he is unable to find as to which of them was then in possession of the disputed property. Abui Ilashem Dewan Vs. S.D.O. Madaripur (1968) 20 DLR 22.

 

—Where a Civil Court is in seixin of a disputed property in respect of which the Court has appointed a Receiver or has passed a decree, the Criminal Court is incompetent to proceed against the same property or appoint a Receiver in respect of iL'Shah Muhammad Vs. Haq Nawaz, (1971) 23 DLR(SC) 14.

 

S. 145(4)—Criminal Court has no jurisdiction to attach any property while the same property is a subject-matter of a civil dispute and in respect of which the Civil Court has passed an order of injunction to maintain status quo or passed a decree. Shah Muhammad Vs. Haq Nawaz (1971) 23 DLR (SC) 14.

 

—Question of title : Investigation into the question of title barred, except in exceptional circumstances. Where a Magistrate has any difficulty as no evidence as to actual possession is available, he may accept such evidence as to title as may be given by the parties in order to determine the question of actual possession. Altaf Ifussain Vs. Abinas(1955) 7 DLR 47.

 

—Magistrate acting under this section has to decide the -possession of the subject of dispute without reference to the merits of the claim of any party. He is not concerned with previous possession or how possession was obtained. Yunus Miah Vs. Abdur Rashid (1969) 21 DLR 322.

 

-S.I45(4) & (5) : For dropping proceedings under sub-section (5) of section 145 of the Code, Magistrate not bound to hold enquiry under sub-section (4) of the same section-Magistrate, when satisfied that there is no likelihood of any breach of peace, not bound to give parties opportunity to establish the contrary. Mansur All Rari Vs. Chinta llaran Das (1970) 22 DLR 367.

 

8.145(4) : In the present case there was no material before the learned Magistrate for his finding lhat the 1st party was in possession. The learned Magistrate was required to find out which party was in possession on the date of drawing up proceedings i.e. on the date of the preliminary order as contemplated in sub-scction(4) of section 145 Cr.P.C. MdJsrail All Vs. Md. Numl Islam (1977) '29 DLR 37$.

 

—An order on the issue of possession passed as required by sub-scction(4) of S.145, not in the presence of both the parties and without hearing ihem is not lawful order. Md. Israil All Vs. Md. Nurul Islam (1977) 29 DLR 377.

 

Hear the party, means "hear the arguments of the party",

On 24.10.70 there was an order like this "case received on transfer, parties arc absent. To 11.11.70 for judgment." It appears that the date of judgment was fixed without hearing arguments of the parties. The Magistrate did not hear any argument of the first party even. It does not appear lhat any opportunity was given to the parties for placing their arguments through their lawyers, The expression "hear the parties" as appearing in sub-section (4) of section 145 also means hear argument of the parties. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.

 

8.145(4) : The expression "land and water"what it means.

The expression "land and water" in sub-s.(4) of s.145 of the Code includes building, markets, fisheries, crops of other produce of land, and the rents or profits of any such property. Md. Hossain Vs. Kalachand (1983) 35 DLR 229.

 

—If the Magistrate considers the case as one of emergency, he may attach the land in dispute pending his decisions under this section. Likelihood of breach of peace over possession of land gives the Magistrate power to draw up proceeding u/s. 145, but if attachment of the land is to be ordered, the Magistrate must state that, he considers the case as one of emergency. Abu Sadek Vs. Md. Nurul Mam. (1984) 36 DLR 141.

S. 145(5)—No dispute whereby to cause breach of peace exists—Magistrate loses jurisdiction. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.

 

—Attachment of disputed property and simultaneous appointment of receiver valid. The court has inherent jurisdiction to pass any interlocutory order in the exercise of its jurisdiction. The order that was passed by staying the operation" of the order relating to attachment and appointment of receiver was clearly available to the learned Magistrate. No exception can therefore, be taken against it. M.S. Alam Vs. Kanak Chandra (1979) 31 DLR (AD) 150.

 

Proceeding drawn when cannot be dropped.

Proceeding once drawn under section 145(1) of the Code cannot be dropped unless there arc materials on record before the Magistrate fo show that the apprehension of breach of peace which gave rise to the proceeding, has disappeared since then or the parties have amicably settled up the dispute, Syed Ahmed Jamil Vs. Kabir Ahmed, (1970) 22 DLR 231.

 

Sec. 145(5) : Section 145 indicnfcs thai there should be a continuing danger of a breach of' peace and use of the word "exists" in the present tense in sub-section (5) connotes that the dispute must continue to exist even.at the time when the objection is raised. Sajahan Vs. Sessions. Judge (1986) 38 DLR (AD) 246.

S. 145(6)—Order u/s. 145(6) has- to be made in case of an emergency.

 

The overriding consideration of an emergency would be the guiding factor in giving jurisdiction to the Magistrate to pass an order because an order passed under the second proviso to sub-section(4) of section 145 Cr.P.C. would be passed only in case of an emergency. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—Under section 145 Cr.P.Code the Magistrate is to decide which of the contending parties is in actual possession of the disputed property without going into the question of title and maintain that party in possession until he will be evicted therefrom by decision of a Civil Court instituted by the party who has been prohibited to disturb the possession of the other party. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286,

 

—An order u/s. 145(6) is final in between the parties and their successors—Only remedy thereafter is for the unsuccessful party to sue in civil court whose decision shall be binding and the Magistrate would put the successful party in possession of the disputed property in accordance with the decision of civil cowUIarunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the civil court. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—A final order under sec.145(6) should indicate proper consideration of the evidence in its true perspective.

It is clear that there has been some prejudice caused to the first party for pronouncing the order without giving the parties to place their arguments. True it is that the final order in a proceeding under section 145 need not be like a judgment as provided in section 367 of the Cr.P.C. Nevertheless, it should show that it has been pronounced on proper consideration of the evidence in its true perspective. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.

 

—Sub-section (6) of section 145 provides that when the Magistrate has found upon enquiry the . possession in favour of one of the parties he shall declare such party to be entitled to possession thereof until evicted therefrom in due course of law and he may also restore the party, which has been forcibly. and wrongfully dispossessed, to the possession of the property. Adam All Vs. State (1975) 27 DLR (AD) 37.

 

—The object of the proceeding under this section is to avoid breach of peace and to maintain status quo as to possession of dispute property provisionally without determining the right of the rival parties to possession. S.MJaffar Vs. A.Q. Shaukat (1969) 21 DLR (SC) 43.

 

—Petition to Magistrate asking to take action under section 145. Magistrate on his own satisfaction can draw up proceedings and transfer to another Magistrate for disposal. Alternatively , he may transfer the petition itself to another Magistrate for disposal according to law. Haji Nazar Md. Vs. Harisuddin (1955) 7 DLR 97.

(The head-note of the case reported in 2 DLR 27   i has been corrected after the above decision).

 

—Cost awarded : Cost awarded to one party to be paid by another—Reason for assessing the cost should be stated in the order. Serajul Islam Vs. A. Rouf (1951)3 DLR 202.

 

—When no such apprehension of breach of the peace exists an order passed under sub-section (6) of S.145 would be illegal. Kalu Howladar Vs. AminuddinTalukdar (1976) 28 DLR 430.

 

—Criminal Courts acting under section 145 come within the plain meaning of section 12(1) of the Pak. (Administration of Evacuee Property) Ordinance of 1949 which lakes away jurisdiction of Criminal Courts from issuing all legal processes in respect of evacuee property. Malik Md. Sharif Vs. Crown (1954) 6 DLR (WP) 220.

 

S. 146 : Trying Magistrate can attach the disputed property only when he finds which of the contending parties are in possession of it or he can not find which party is in possession. As to whether there is any apprehension of breach of peace it is for the Trying Magistrate to decide on his satisfaction about that. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

S.146—appears to be a follow up of section 145 of the Cr.P.C. as is evident from the expression "then in such possession" occurring in Sub-section(I) of section 146. Reference may be made to sub-sections (I)(4),(5) and (6) of S. 145 of the Code to ascertain the true import of the said expression. Mam Ali Vs. State (1975) 27 DLR (Appl. Division) 37.

 

—S.146(I) Proviso.—The proviso to section 146(1) of the Cr.P.C. confers powers upon the Magistrate to withdraw attachment if he is satisfied that there was no longer any likelihood of breach of peace in regard to the subject of dispute and if the discretion has been exercised properly (here is no case for any interference by a rcvisional court. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

S. 146(1)Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam AH Vs. State (1975) 27 DLR (AD) 37.

 

S. 146(1) : Question as to the attachment of disputed property either u/s.l45(4) or u/s. 146(1) is one for the Magistrate to decide.

 

The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-section (4) of section 145 or sub­section (I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facls and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-section^) of section 146 of the Code in pursuance of direction given by the High Court. That direction calling upon the learned Magistrate to attach the land once again, if it had already been released, was however, not a prpper direction. Adam AH Vs. State' (1975) 27DLR (AD) 38.

 

S. 146(1): Empowers attachment of the property when it is not possible which party is in possession of it. Withdrawal of the attachment order when apprehension ceases. Sub-section(I) of section 146 confers the power of attaching the subject of dispute if the Magistrate decides that none of the parties was "then in such possession." or when he cannot satisfy himself as to which of them was "then in such'possession" of the subject of dispute. The proviso to the sub-section empowers the Magistrate concerned and the District Magistrate to withdraw the order of attachment on being satisfied that there is no longer any apprehension of breach of the peace. Sub-section(2) empowers the Magistrate concerned to appoint a receiver while attaching the subject of dispute. Adam All Vs. State (1975) 27 DLR (Appl. Divn.) 38..

—Magistrate is competent to withdraw an .attachment on his satisfaction that there is no more any likelihood of breach of the peace in regard to the Land in dispute. Abdul Gani Bepari Vs. Shahed Alt Majhi (1969) 21 DLR 327.

 

S. 146(1)(2) : Jurisdiction to attach disputed property when arises.

It arises only if the Magistrate, upon an enquiry held under sub-section(4) of section 145, comes to a finding that neither party was in actual possession of the same on the date of the preliminary order made under sub-section(I) of section 145 of the Code, or he is unable to satisfy himself as to .which of them was in such possession on that date. It, therefore, follows that in the absence of any such negative finding on the question of actual possession of the subject of dispute, it cannot be attached under sub-section(I) of section 146, nor can a receiver thereof be appointed under sub-section (2) of the said section. Adam AH Vs. State (1975) 27 DLR(Appl. Divn.) 38.           

 

S. 147 : Direction to a party to remove obstructions without first requiring them to put-in written statements of their respective claims is illegal. Mahabhat All Sarkar Vs. Jahur All (1957)9

DLR 257.

 

S. 154First Information Report. A FIR is not in the nature of formal charge. (1952) 4 DLR (FC) 53 (P-69, r. h. c.).

 

—The accused of his own accord went upto the police-station and there to the officer-in-chargc he made a report confessing his guilt and this was recorded under section 154, Cr.P.C.

 

Held : This report at the police-station is not admissible in evidence. Md. Bakhsh Vs. State 9 DLR (SC) 11.

 

—Evidentiary value—First Information Report does hot increase the weight of the evidence of anybody save and except of the informant and cannot in law be used to increase the weight of the evidence of any person on whose behalf it has been lodged. And to say to the jury that it does so increase is a serious mis-direction. Keramat All Sheikh Vs. Crown (1952) 4 DLR 435.

 

—The presence of the witnesses1 names in F.I.R. is only a test for determining whether they were present at the time of the occurrence or not. it is no more proof of their veracity than the absence of their names in the report is proof of their mendacity. Khera Vs. Crown (1957) 9 DLR (WP) 9

 

—Telegram, if can be treated as F.I.R.— Unsigned telegrams and telephone messages are not First Information Reports and if, after the receipt of a telegram or a telephonic message, the police proceed to the spot and take down the information and get it signed, the statement would be the First Information Report. Crown Vs. Faiz Mohammad 2 PCR 210.

 

—A First Information Report cannot be used to contradict any prosecution witness. It can be used to contradict only the witness who lodged it and that also in certain circumstances. Crown Vs. Abdul Bari (1950) 2 DLR 120.

 

—The prosecutor also has the right (with the permission of the Court) of contradicting the maker thereof. Such contradiction cannot be used as substantive evidence but can  be taken into consideration. Adalat Vs. Crown (1956) 8 DLR • (F.C.) 69.

 

—A First Information Report after the police investigation had started, being a statement of a person before the police, is inadmissible in evidence and could not be taken into consideration. Golam Quader Vs. Crown, 2 P.C.R. 17.

—First Information Report—Principle of natural justice, i.e., audi alleram partem, does not apply to the making of a F.I.R.—Opportunity of hearing the accused person before registration of a case is neither necessary nor possible. Muhammad Hayat Vs. The Chief Settlement & Rehabilitation Commissioner (1971) 23 DLR (Lah.) 34.

 

—Whether a statement recorded by a police-officer is an F.I.R. or a statement made in the course of investigation is one of fact. Muhammad. Siddique Vs. Crown (1954) 6 DLR (F.C.) 56.

 

—An entry made in the daily diary of the police station on receipt of a telephone message from a head constable to whom the report of the occurrence was staled to have been made by the complaint is not a first information report. Crown Vs. Faiz Mahammad2PCR210.

 

—First Information Report—All statements relating to commission of a cognizable offence made tc the police before commencement of investigation can be treated as First Information Report—But such statements cannot be used as substantive evidence. The State Vs. Bakmir (1970) 22 DLR (WP) 27.

 

—First Information Report was made within half an hour of the occurrence but it was sketchy and made no mention of motive—Held, the F.I.R. gives an impression of being genuine and reliable. Mumdiali Vs. The Slate (1970) 22 DLR (WP) 158.

 

—Where a Chawkidar arrived at the thana and reported the occurrence to an S.I. of Police who did not record the statement of the Chawkidar in writing but recorded the statement of another person, who arrived at the thana later on, as the First Information Report in the case

—Held : The information given by the Chowkidar being the first in point of time was the First Information Report in the case and the Sessions Judge was wrong in allowing the latter statement to go to the jury. Jamshed AH Vs. Crown (1953) 5 DLR 369.

 

—If there is an information relating to the commission of the cognizable offence it falls under Sec. 154, even though the police officer may have neglected to record it.

 

The condition as to character of statements recorded in Sec. 154 is two fold: first, it must be information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events; It was never meant that any sort of information would fall under section 154 so long as it is first in point of time. Jamshed All Vs. Crown, (1953) 5 DLR 369

 

—Even when an information is given orally under section 154 and the police-officer docs not reduce it to writing, he acts in an irregular way. And while investigating the truth or otherwise of the information, he is carrying on an investigation.to which provision of &• 162, Cr.P.C. applies.

 

—First Information Report at the place of occurrence after preliminary investigation— Inadmissible in evidence. All Sher Vs. Slate (1966) 18 DLR (WP) 112.

 

S. 154 : Accused in the FIR making confession—not admissible. Confessional statement of an accused incorporated in the FIR lodged by him is hit by the provision of section 25 of Evidence Act and as such not admissible against him. State Vs. Ghandal (1961) 13 DLR (WP) 62.

 

—First Information Report. A FIR is not in the nature of a formal charge. (1952) 4 DLR (FC)

53.

 

—Its use and effectiveness—N-ot a substantive evidence. FIR is not a piece of substantive evidence and any omission or contradictions found therein can only be used to discredit the maker thereof. At the same time it is a very valuable and important document, and if the case set up at the very earliest moment is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of ihc Court which needs to be cleared up and explained satisfactorily. WazirVs. Slate (1961) 13 DLR (WP) 5: (1960) PLD (Ka.) 674.

 

—FIR lodged by the complainant party was followed by one filed by the accused party after li/2 hours. The later information to be treated as not made in the course of investigation, but it is not a substantive evidence. All Zaman Vs. Stale (1963) 75 DLR (SC) 107 : 1963 PLD (SC) 152.

 

— FIR—Its use and importance cannot be used as a substantive evidence, but for the purpose of contradiction—Absence of witnesses name in the FIR—what can be inferred therefrom—Weight to be attached to FIR.—The scope of its use. The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the police. It may not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegation against accused. When it is made by an alleged eye-witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances arc not unknown where the prosecuting police have found the first information report to be totally false, and in such a case it is their practice, as well as their duty, to show how and why they came to that conclusion, and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report. Siraz Din Vs. Kala (1964) 16 DLR (SC) 94

 

—Use of FIR can be used for corroborating or contradicting the informant alone and none else. Anis Mondal Vs. State (1958) 10 DLR 459.

 

S. 154The statements in the F.I.R. can be used merely for purpose of corroborating or contradicting the informant not for the purpose of proving that the facts alleged thrcin are correct. Sudhannaya Sarkar Vs. The State(1976) 28 DLR 59.

 

—FIR can legitimately be used for assessment of the whole prosecution case in the light of facts and circumstances of the case.

 

It is true that a first information report cannot be used to contradict any witness other than the informant; but the Court can and should take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of vital importance in the assessment of prosecution evidence.

 

The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above. State Vs. Basirullah (1964) 16 DLR 189.

 

—Delay in lodging FIR in a murder case by the culprit himself (confessing the crime)

To estimate the time of the occurrence from the time of the report in relation to the distance to the Police-Station is inappropriate in a case where the culprit himself goes to make the report. It would be understandable if he 'dragged his feet' somewhat. Md. Saleh Vs. State (1965) 17 DLR (SC) 420.

 

—First information report may be used to corroborate or contradict the maker thereof. Not to contradict third persons. 4 PLD (Lah.) 11.

 

—Witnesses evidence to the effect that they heard the deceased saying that he (deceased) recognised the accused persons when the deceased was not examined can not corroborate the F.I.R. which is not a substantive piece of evidence.

In the absence of the examination of the informant (Who is dead) we cannot corroborate the prosecution stories stated in the F.I.R, as the F.I.R. Js not a substantive evidence. Sidjannaya Sarkar Vs. The State (1976) 28 DLR 59.

 

—F.I.R. can be used to corroborate the testimony only of the informant.

F.I.R. may be put in evidence to corroborate only the testimony of the person who gave information incorporated in the First Information Report and not for the purpose of corroborating the evidence of any one else. Evidence of P.Ws, 3, 4, 5 and 7 in the present case before the Committing Magistrate and brought on the record of the trial court under section 288 Cr.P.C. cannot corroborate the story as given in the First Information Report. Sudhannaya Sarkar Vs. The Slate (1976) 28 DLR 59.

 

—The statement in the F.t.R. can be used merely for the purpose of corroborating or contradicting the informant and not for the purpose of proving that the facts alleged therein are correct. Sudhannaya Sarkar Vs. The State (1976) 28 DLR 59.

 

—First Information  Report

In the early morning "somebody" was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police "by somebody" is the First Information Report within the meaning of section 154 of the Cr.P.C. and all subsequent information fall within the purview of. section 161 of the Cr.P.C. Muslimuddin Vs. State. (1986) 38 DLR (AD) 311.

 

—First information report not a substantive piece of evidence. But where there is clear conflict between the version given in the F.I.R. and the story made out in the course of trial—it then becomes imperative to note the conflict between them. We arc conscious that a F.I.R. cannot be treated as a substantive piece of evidence, but we cannot help observing that this is a fit and proper case where a departure should be made. It has been held in the case of State Vs. Basirullah (1964) 16 DLR (Dhaka) 189 that the court is entitled to note the conflict between the first recorded version of the prosecution case and the story that was made out in course of the trial. A comparison between two such versions of the case is not only permissible but imperative in the context of the circumstances set out in the said reported case. Nay an Vs. The State (1985) 37 DLR 237.

 

—Accused named in promptly lodged F.I.R. supported by medical evidence. Majibur Rahman Vs. State (1987) 39 DLR 437.

 

—Delay in lodging of F.I.R.—The delay is to be understood in the light of the plausibility of the explanation and must depend for consideration on all the facts and circumstances of a given case—here it is the fear of the accused assassins. State Vs. Fazal. (1987) 39 DLR (AD) 166.

/

—Which one of several information about same occurrence to be regarded as the F.I.R.depcnds upon the facts and circumstances of each case. Touhid Mam Vs. The State. (1986) 38 DLR 289.

 

SsJ54 and 195(I)(c)' : An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s.195, Cr.P.Code. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s.211, Penal Code in which case the bar created by s.195 Cr.P.Code will not be attracted—When Magistrate takes cognisance of an offence u/s.211 Penal Code, on the basis of false allegation that does not attract the provisions imposed by s.195 (I)(c) Cr.P.C. Abdul Quander Vs. Serjuddowla (1986) 38 DLR 321.

—Police carries on a statutory duty under sections 154 and 156 in respect of a cognizable offence. Police submitting its report u/s.173 after investigation to the Magistrate who can, if he likes, direct fuflhcf investigation—Police in the matter of investigation enjoys wide powers to complete the same and the High Court can not interfere at the investigation stage—Submission of charge-sheet can not be treated as a finality of investigation, until cognizance of the case is taken by the Court. Bangladesh Vs.Tan KhengHock (1979) 31 DLR (AD) 69.

 

Ss. 154, 156 & 561A : Extra-ordinary power u/s.561A to be exercised sparingly and with utmost caution—interference at the investigation stage under section 156, not legal. Extra-ordinary power u/s 561A being extra­ordinary it ought to be used sparingly, carefully, and with utmost caution only where such exercise is justified by the tests laid down in the section itself. There is no doubt that under sections 154 and 156 of the Code the police having a statutory right to investigate a cognizable offence without requiring sanction of the Court, the inherent jurisdiction under section 561A of the Code can not be extended to interfere with investigation. Bangladesh Vs. Tan Khcng Hock (1979) 31 DLR (AD) 69.

 

First  information  report.

F.I.R. it being the earliest record of a case, it has got much importance. It enables the court to see what the prosecution case was when it-was started and to check up any subsequent embellishment or any departure therefrom as the case proceeds through different stages. Mafu Alias Mafizuddin Gazi Vs. The State (1979) 31 DLR 16.

 

—Where a witness does not substantially support his statement made under section 154 Cr.P.C. his evidence must be entirely ignored. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

Ss.154, 173 and 176 : Provisions of sees.154,173 and 176 explained.

The procedure for investigation by a police officer has been laid down in chapter XIV of the Code of Criminal Procedure from sections 154 to 176.

 

On completion of the investigation the police officer shall submit to the Magistrate a report in a prescribed 'form'. This report shall be either sending up the accused for trial or recommending that the case against him be cancelled. In the former case the-report is called final report. These two terms do not appear in section 173 or anywhere in chapter XIV. These terms have been provided in the Department Rules of the Police. Sub-section(2) of section 173 provides that a superior police officer may direct further investigation; but such direction can be given only.when the superior police officer has been appointed under section 158.

 

Section 158, of the Code relates to a report as to investigation of a case under section 157, that is, where commission of a cognizable offence has been suspected by the officer-in-chargc of a police station. State Vs. Abul Kashem. (1975) 27 DLR 342.

 

S. 155Charge-Sheet after investi­gation by the police without order from a competent Magistrate for offences under sections 465 and 471 of the Penal Code— improper. So far as offence under sections 465 and 471 of the Penal Code arc concerned, such offences are non-cognizablc by the police since the accused could not be arrested being charged under the aforesaid sections without any warrant from any appropriate criminal court. Sub-section (2) of section 155 of the Cr.P.C, says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such cases. The police investigated this case treating it as a cognizable case and did not obtain any order of any relevant Magistrate. Abdul Gaffar Munshi Vs. The State (1983) 35 DLR 76.

 

—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.

—Where a Police Officer takes up investigation in an offence under section 290. P.P.C.(case of nuisance) without the order of a Magistrate, the proceedings are illegal. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.

 

Ss. 155, 156, 157, 159 : Provisions of the sections explained.

Section 155 of the Code provides that no police1 officer shall investigate a non-cognizable case without the order of Magistrate of the first or Second class having power to try such case or commit the same for trial. Sub-sec.(I) of section 156 empowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157

 

of the Code lays down the procedure to be adopted in the matter of investigation, while section 169 provides that if upon an investigation it appears to the officer making the investigation that there is no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

S.155, read with sections 465 and 471 of the Penal Code.

Charge-sheet after investigation by the police without order from a competent Magistrate for officers under sections 465 and 471 of the Penal Code—improper. Abdul Gaffar Munshi Vs. Stale (1983) 35 DLR 76.

 

—S. 155(1) : Investigation of an offence by police under section 120 of the Railways Act without Magistrate's prior order and trial on the basis of police report is illegal under section 155(1). Slate Vs. Serajul Islam (1969) 21 DLR 99.

 

—S. 155(2) : If, out of several, one is a cognizable case S. 155 (2) creates no bar for investigation of such a case. Haider Jahan Vs. State, (1973) 35 DLR 455.

 

—A police officer is not competent to investigate a non-cognizable offence without the order of a competent Magistrate. Hussain Baksh Vs. Slate (1963) 15 DLR (WP) 33: 1963 PLD (Lah.) 46.

 

—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP). 33:1963 PLD (Lah.) 46.

 

Police investigation in non-cognizable cases without orders from competent .Magistrate, held illegal. Against the provision of law the police in the case of a non-cognizable offence' took up investigation and finally submitted a charge-sheet against the accused—Magistrate unaware of the provision of law took cognizance of the case and issued summons against the accused—whole procedure was illegal and quashed and accused discharged. Abut Hossain Sikder Vs. The State (1983) 35 DLR 200.

 

S. 155(2)—Read with sec 439(4) and S.439A(2).

Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s.427 Penal Code without taking Magistrate's permission for investigation. The Magistrate took cognizance of the offence and started proceedings against the accused—The Sessions Judge being moved against the Magistrate taking cognizance of the offence u/s. 427. Penal Code rejected the prayer for quashing.

 

Held: Sessions Judge's order in view of the provision of s.439 (4) Cr.P.C. Code is final. Siddique Ahmed Vs. The State (1985) 37 DLR 223.

—S.156 : Cognizable offence—Police has statutory right to investigate into a cognizable offence whether a report is made to that effect or not and if reported, irrespective of the authority of the reporter. Muhammad Hayat Vs. The Chief Settlement officer (1971) 23 DLR (Lah.) 34.

 

156(1) : Power of police to investigate a cognizable case—Should receive no interference from the judiciary—Investigation by the police under sec. 156 could not be stopped by a Magistrate. IPLD (Lah.) 87.

 

8.156(2) : Irregularity in an investigation does not affect the jurisdiction of the trial Court. Proceeding of a Magistrate during raid in respect of taking illegal gratification—not investigation. 8 PLD (Lah.) 87.

—Even, if the investigation had not been in conformity with the legal povisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact that the prosecution could not invoke section 156(2), in respect of an unauthorised investigation. 7 PLD (Lah.) 667.

 

8.156(3)Taking cognizance of and referring to police investigation. Magistrate not bound to take cognizance of complaint  made  and,   if  he   desires   Police investigation, he must straight away refer the case to Police under section 156(3). Azizur Rahman Vs. Slate (1960) 12 DLR 489,1960 PLD Dae. 631

 

—Magistrate not bound to take cognizance of an offence on a petition of a complaint—without taking cognizance he may as well proceed under section 156 (3) for investigation. (1958) 10 DLR 412.

 

Ss. 156(3), 190, 200, 204Narazi. petition by a complainant—Magistrate's power to initiate proceeding on his own accord. It is open to an informant to subniit a narazi .petition against a final report submitted by the ' 'police before the Magistrate who may ti? it such petition as a petition of complainant, take cognizance under section 190(I)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(I)(b) of the Code on the information contained in the police report, if in his opinion the facts staled therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points\undcr the powers conferred upon him under section 156(3) of the Code. Khorshcd Alam Vs. Stale (1975) 27 DLR 111.

 

S.158High Court ordered for retrial of the case—Therefore charges framed by the Magistrate on the basis of the witnesses' deposition to the earlier stage must give way to fresh charges to be framed after examining the witnesses afresh. Abul Mollah Vs. Alauddin Ahmed (1978) 30 DLR 175.

 

S.159 : Inquiry by Magistrate simultaneously with Police investigation—Not un-warranted. 8 PLD La/i. 448.

 

S.161Use of the statement made to the Police—Statement to the Police recorded under the section cannot be used by the prosecution to corroborate or explain the evidence of the witness in Court but the defence can use it for the purpose of contradicting the witness and testing his veracity and never for any other purpose. Sana Mia Vs. State (.1959)11 DLR 17 :1959 PLD Dae. 400.

 

—Statements of witnesses to the police u/s. 161 Cr.P.C. not at all admissible in law. Ansar All Vs. Slate (1983) 35 DLR 76.

 

—Statements made u/s.161—How far and to what extent can be used in a criminal trial. Ansar All Vs. State (1983) 35 DLR 76.

 

Boiled statement— Cross-exami­nation of P.Ws. by reference to it.

—To allow the defence to cross-examine witnesses with reference to their boiled statement recorded by a Police Officer is not only an illegality but also causes miscarriage of justice. (1953) 5 DLR 169.

 

—Previous statement of witness, when can be used as a substantive evidence—when a previous statement of witness is contradicted by his evidence in Court—its effect. A previous statement' of witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceedings, such as commitment proceedings and then put it at the trial under section 288 of the Code of Criminal Procedure.

 

A statement recorded by the Police under section 161 of the Code of Criminal Procedure cannot be utilised as substantive evidence. It can only be utilised under section 162 of the Code of Criminal Procedure to contradict such witness in the manner provided by section 145 -of the Evidence Act.

 

When a witness is so contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Nazir Hossain Vs. Md. Shaft (1965) 17 DLR (SC) 40.

 

Ss. 161 and 162 : Failure to supply approver's statement—Accused Preju­diced—Approver's statement recorded under section 161 was not supplied to the defence lawyer when he asked for it in the trial court. Accused was convicted on approver's and circumstantial evidence. In the Court of Appeal, the Court offered the statement of the approver recorded under section 161 but the accused's lawyer refused; the Court, however, assured that the contradictions would be treated as unexplained.

 

This course is not sufficient to amend the prejudice caused to the accused—The right course was either to send the case for retrial or call the approver to have him cross-examined on his statement recorded under section 161. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42; 1960 PLD (SC)

 

S, 161—Propriety of maintaining the original statement under section 161. It is improper on the part of the prosecution to remove the original statement of the defence witness recorded under section 161 of the Code and replace it with one which is said to be a copy of the original one. Abdul Kuddus Akanda Vs. The State (1970) 22 DLR 195.

 

Statements recorded by police under section 161 cannot be used as substantive evidence—Use of such statements as substantive evcdencc causes failure of justice—Such statement can only be used for contradicting prosecution witnesses in the manner provided by section 145 of the Evidence Act. Prya Bala Das Vs. Ata (1970) 22 DLR 582.

 

—Statement recorded by Police under section 161—Court to consider such record only with a view to weighing the evidence actually adduced in court. Prya Bala Das Vs. Ata, (1970) 22 DLR 582.

 

Statement recorded by Police under section 161 Cr.P.C.—Where such record becomes suspect or unreliable much weight should not be given to such statement or alleged omission by prosecution witnesses—Court should exercise its discretion judicially, if in such circumstances direct evidence of witnesses should be disbelieved. Pry a Bala Das Vs. Ata (1970) 22 DLR 582.

 

— S- 16KThe statement recorded under section 161 is no evidence in a trial. Ekabbar AH Vs. The State (1970) 22 DLR 620.

 

—An omission of a fact from the statement is only of value, if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The practice of proving such omission of statements is generally to be discouraged. Ekabbar All Vs. The State (1970) 22 DLR 620.

 

—Statement under the section— Purpose for which it may be used.

Statement under section 161 is not at all evidence. The only purpose of such statement is" to contradict the prosecution witness and that also can be done only after the statement has been duly proved and the provisions of section 145 of Evidence Act has been duly complied with. Abdul Hashem Vs. State (1968) 20 DLR 834.

 

—Accused's right  to get statements.

Accused has the right to get copies of the statements of witnesses recorded by an investigating office? under section 161 and examine them for himself to find out whether there are contradictions. It is not impossible that the defence might be able to abstract from the condensed or boiled statement portions which could be attributed to one or the other of the witness whom it intends to contradict by such statements. Sarafat Vs. Crown (1952) 4 DLR204.

 

—A boiled statement is really a digest or an abstract of the statement of a number of witnesses. Sarafat Vs. Crownr(1952) 4 DLR 204.

 

3ecs. 161 and 162 : Recording of witnesses, statement in a boiled down form is

irregular, but unless it causes prejudice to the accused, the trial stands. Md. IsrafilVs. State (1957) 9 DLR 92.

 

—Statements of witnesses recorded under Sec. 161 cannot be withheld from defence on the plea that they were recorded in a boiled down form. (1953) 5 DLR 313 and also see. (1957) 9 DLR (WP) 1.

 

—Record of joint statement of several persons—withholding the same prejudices the defence.

 

—Statement made to a police-officer under Sec. 161 is inadmissible in evidence and cannot be brought on record,53 CWN (DR. 1) 66.

 

—To allow the defence to cross-examine witnesses with reference to their    boiled   down   statement recorded by a police-officer is not only an illegality but also causes miscarriage of justice. A.F.M. Abdul Jalil Vs. A.Sabur (1953) 5 DLR 169.

 

S. 162 : Contradiction brought out by defence of a tendered witness—section applicable. Defence by cross-examination brought out certain contradictions in. the evidence of a prosecution witness tendered by prosecution from what he stated to the investigating officer as recorded under section 161. The defence wanted to confront him with what he said before the Investigating Officer but the Sessions Judge disallowed it on the ground that the witness was a tendered witness.

 

Held : Even though the evidence consisted merely of statements in cross-examination, the defence is entitled to use the statement of the witness taken under section 16T in order to contradict the evidence of the said witnesses elicited in cross-examination. State Vs. Nowab Alt (1961) 13 DLR 646 :1963 PLD (Dae) 61.

 

—Investigating Officer as a defence witness—cannot be cross-examined by the prosecution. The prosecution having failed to examine the Investigating Officer as a witness for the prosecution the defence examined him as a defence witness and the Investigating Officer in his examination-in-chief made certain statements in favour of the defence whereupon the prosecution cross-examined him.

Held : The Sessions Judge ought not to have allowed the prosecution to cross-examine the Investigating Officer.

 

No statement made by any person to the Police Officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that, too, at the instance of the accused. Anis Mondal Vs. State (1958) 10 DLR 459.                     

 

—The prosecution has no right whatsoever to prove the statement of the witness made to the Police Officer or the witness. Defence only has the right to cross-examine the Investigating Officer. Anis Mondal Vs. State. (1958) 10 DLR 459.

 

—Police diary—Use by the Court when Investigating Officer is cross-examined. Negative answers by the Investigating Officer—Public Prosecutor's duty in clearing up matter. It is desirable that when an Investigating Officer is being cross-examined as to previous statements made to him by the witness for the prosecution, the Court should have the Police diary before it and see whether the negative answer of the officer really gives a picture of what the witness, in fact had stated. If not, the fact should be borne in mind and the Court should watch whether the matter is cleared up in re-examination. It is the duty of the Public Prosecutor to see that the negative answer from an Investigating Officer in respect of the statements of a witness does not create a wrong impression of what the witness stated before the Police. He must in these cases bring about other statements to explain the matter referred to in cross-examination. If the Public Prosecutor fails to do so, it-is the duty of the Court in fairness to the cases, and the witness, to bring about facts which will clear up the negative answer. This will be legitimate use of the Police diary and one of the modes of taking aid from it in the trial. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Where the Investigating Officer was not examined by the Prosecution but was examined by defence, section 162 stood as a bar against the prosecution for cross-examining him as regards the statement made by the witness to the Investigating Officer. Anis Mondal Vs. State (1958) 10 DLR 459.

 

— Witness must be called for the prosecution. The requirement of section 162 is that the witness must be called for the Prosecution. State Vs. Nawab AH Biswas (1961) 13 DLR 646.

 

—Statements to the Investigating Officer cannot be used to collaborate Prosecution witnesses. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Effect of inadmissible evidence placed before the jury-verdict of guilty, unsafe to rely on. Investigating Officer, examined as a defence witness, made some statements in favour, of the defence. Prosecution thereupon cross-examined the Investigating Officer which the Sessions Judge allowed, but, in his charge to. the jury, he told the latter that the evidence of the Investigating Officer in cross-examination by the prosecution was inadmissible in law and asked them, not to be influenced by the same.

 

Held : It must be remembered that the jury are laymen and when this evidence had been placed before them it would be impossible for them to shake off the effect of those evidence in spite of the warning given by the learned Judge. The trial has certainly been vitiated by violating the provisions of section 162 Criminal Procedure Code and that jury might have been misled by those inadmissible evidence. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Whether a statement recorded by the police is an F.I.R. or a statement made in the course of Investigation is a question of fact. Md. Siddique Vs. Crown 6 DLR (FC) 56.

 

—Investigating Officer cannot be asked as to what a witness said to him.

The trial Judge is not permitted to ask the Investigating Officer as to the contents of an oral statements made to him by. a certain witness after the F.I.R. was recorded. Such a statement must be eliminated from the recofd. All Haider Vs. Stale (1958) 10 DLR SC 193.

 

—Dying declaration — Dying declaration made in the course of Police Investigation — admissible. Shahidulla Khan Vs. Slate (1960) 12 ®LR 537: (1961 )PLD (Dae.) 1.

 

—Where a chowkider arrived at the thana and reported the occurrence to an S.I. of Police who did notrccord the statement of the chowkider in writing but recorded the statement of another person, who arrived at the thana later on, as the first information report.

 

Held that the information given by the chowkider was the first information report in the case and the Sessions Judge was wrong in allowing [he latter statement to go to the jury. Jamshed All Vs. Crown (1953) 5 DLR 369.

 

—Omission to supply to accused at trial copies -of statements of witnesses recorded in Police investigation— copies supplied at the hearing of appeal. Where no copy of the approver's statement taken by the Police during investigation was supplied to the accused at (he trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an inference of prejudice. But this inference is not irrcbuttable and where a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused are unable even to suggest thit cross-examination of the witness as to ah alleged omission or contradiction might have led to a break down to the witness or a material part of his testimony, the Court cannot set aside the conviction^ inasmuch as the matter is governed by section 537 of the Code. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42 = (1960) PLD.

 

—Defence lawyer entitled to get copies recorded under section 162. Lawyer permitted to defend an accused is entitled to have access to the record and be supplied with copies as provided under section 162 Criminal Procedure Code. State Vs. Ain Khan (1961) 13 DLR 911.

 

—An omission from the record in case diary of a statement does not amount to contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police-officer would have certainly recorded it, had it been there. Tera Meah Vs. Crown (1955)7 DLR 539.

 

—Omission of statements from the diary recorded—Practice of proving such omission, not approved : The practice of proving omissions of statements (in the police diary) are generally to be discouraged and without it being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary, it is difficult to say that it is a contradiction of a previous statement and much more so in the case of a statement not reco'rdcd in the dia/y. Tera Meah Vs. Crown (f955)7DLR539.

 

—Statement to the police : Prosecution witnesses were questioned by the defence whether they made certain statements to the police in the course of investigation and upon their saying that they did, the Investigating Officer was there-after asked as to whether particular witnesses has made particular statements to him. The latter said that in some cases a particular witness had not stated and in some cases in his diary it was not noted as such.

 

Held : The statements referred to above are not statements coming within the purvtew of section 161, and, therefore, they cannot be proved under section 162 to hold that contradictions have been established. Tera Meah Vs. Crown (1955)7 DLR 539.

—Making one part of a continuous statement before and the other part during investigation by police officer—Former not be covered by section 162 and the latter hit by section 162 Cr.P.G. Mir Muhammad Vs. The Slate (1969) 21 DLR (WP) 217.

 

—F.I.R. recorded at the place of occurrence after preliminary investigation—Inadmissible in evidence. Ali Sher Vs. State (1966) 18 DLR (WP) 112.

 

—The mode of contradicting a previous statement as provided in sections 145 and 153(3) of the Evidence Act has nothing to do with the mode prescribed in section 162, Cr.P.C. The credit of a witness may be impeached by proving his former statement inconsistent with any part of his evidence which is liable to be contradicted. Altaf Molla Vs. Crown (1954) 6 DLR 420.

 

—Previous statements recorded under section 161, Cr.P.C. cannot be proved by the Investigating Officer before the witnesses had actually taken their stand in the witness box. State Vs. Go lam Mostafa (1949) 1 DLR 71 (at page 77, left- hand column).

 

—Information previous to first information whereupon police action other than investigation into cognizable offence started, is admissible in evidence.

 

—When a witness has given details of the commission of the crime and of the persons engaged in- committing it, the act of the Police-Officer m subsequently asking the witnesses to point out those persons from a test identification parade cannot be objected to and the evidence of the result of such a test may be rightly given under sec. 9 of the Evidence Act in proof of the identity of the accused without contravening the provisions of Sec. 162 Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (atp.136. left hand col).

 

—Identification parade : Held before police—Evidence as to, inadmissible. 5 PLD (Sind) 279.

 

—Test identification : Act of identifying in a test identification parade is not a statement hit by section 162 and is admissible in evidence. Bashir Harm Vs. State, 1 DLR (SC) 21.

 

—Identification of articles before an identifying police-officer is hit by Sec. 162. Evidence of such identification is of no value'. Mir AmirHossain Vs. Crown. (1954) 6 DLR 518.\

 

—List of stolen property given to the police in the course of investigation—Inadmissible and must be excluded from consideration. Md. Yakub Vs. Crown (1955) 7 DLR (WP) 36.

 

— Admissibility   of   evidence   of  the  | pointing   out   by   approver   of  the  place where   some   incidents   took   place.   The relevant point was whether the pointing out of the place by the approver to the police-officer in the course of investigation where the offence was alleged to have been committed was hit by section 162.

 

Held : In such a case the provisions of the section are not contravened because what was used at the trial was not a statement made to the police but merely the fact that the witness demonstrated to the police his knowledge of certain localities. Ibrahim BhakVs. Crown (1955) 7 DLR (FC) 123 (133).

 

  What    does    not    amount    to   a statement to the police.    Where what is at issue at the trial is not a statement to the police by a witness but merely the fact that the witness demonstrated to the police his knowledge of certain localities where some incidents are alleged or proved to have taken place, Sec. 162 of the Code is not contravened by the admission of such evidence. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) W (136).

 

—Statement in the course of investigation. Although in examination-in-chief the prosecution witness stated that he had mentioned the fact of his recognition to the Sub-Inspector of Police but in cross-examination he said that he mentioned the names of the accused persons to the Sub-Inspector of Police.

 

Held : This statement is hit by sec. 162, and should never have been allowed to go on record. Syed Ahmed Vs. Crown (1950) 2 DLR 244.

 

—Steps in " furtherance of investigation : In the context in which the word occurs, investigation must refer to the investigation of the specific allegation of crime already reported and the sections can apply only to those statements which are steps in furtherance of the pending investigation. Shahamad Vs. State (1956) 8 DLR (SC) 124.

 

—The mere fact that a statement was made during investigation is not by itself sufficient to bring it under section 162. The question whether a statement was in the course of an investigation or not is a question of fact to be decided on the  circumstances of each case. Shahamad Vs. State (1956) 8 DLR (SC) 124.

 

—F.I.R. after the police investigation had ; started, being a statement of a person before the police, was not admissible in evidence. Golam Qadir Vs. Crown 2 P.C.R. 17;2 PLD (Lah.) 366.

 

—Statements    to    custom    officers    :

Customs officials are not police-officers and statements made to them arc not covered by section 162. Ayoob Vs. Crown 2 PCR 60.

 

—Statement made by an accused before a police-officer during investigation—inadmissible. 2 PLD (Lah.) 364.

 

—Prosecution witness called in defence does not cease to be a witness called for the prosecution—Copy of such a witness's statement before the police should be supplied to the defence. In case of refusal of copy of such statement on what the witness was sought to be contradicted, his evidence should be kept out of consideration. 1954 PLD (Lah.) 210.

 

—A police officer while he is investigating the truth or otherwise of an information received he is certainly carrying on an investigation under Chapter XIV of the Cr.P.C. and any statement made by persons examined by him will be hit by sec. 162 of  CrP.C. JamshedAli Vs. Crown (1953) 5 DLR 369.

 

—The summary trial should of course be speedy, but it does not dispense with the legal provisions for engaging a lawyer by the accused. As the record shows the accused hardly got any opportunity to be defended by a lawyer. It was contended on behalf of the State that the defence did not suggest any case of placing of the gun in their ring-well. It must be considered that the accused were hardly given any opportunity to arrange their legal defence. In between the dates of their arrest and trial only 3 days elapsed. It is not understood why their trial was held in such a haste. Pair Baksha Vs. Stale (1975) 27 DLR 251.

 

—Statements made u/s. 162—How far and to what extent can be used in a criminal trial. We are concerned, at the moment, with the first proviso to section 162 Cr.P.C. It is clear from the aforequoted first proviso :

(I) That statements made to the Investigation Officer cannot be used by the prosecution to corroborate or contradict the statements of its own witness, It is true that section 157 of the Evidence Act provides that in order to corroborate testimony of a witness any former statement made by such witness relating to the same fact is admissible in evidence, but this general rule is controlled by the first proviso to section 162 Cr.P.C. Ansar AH Vs. State (1983) 35 DLR 303.

 

Sections- 162 & 164Statements made by accused to Magistrate holding "trap"—admissible at a trial—Such statement not hit by sees. 162 or 164. 9PLD(Lah.)25i.

 

—Ss. 162 and 164—For guidance in recording confession or statement under S.I64 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any confession. State Vs. Lalu Mia (1987) 39 DLR (AD) 117

 

—S. 164— A statement made under section 164 can never be used as substantive evidence of the facts stated, but it can be used to support or challenge the evidence given in Court by the person who made the statement. (1950) 2 DLR (PC) 39.

 

—Statements under section 164 come under section 24 of the Evidence Act and are, therefore, excluded from evidence. (1956) 8 DLR (FC) 1.

 

—The word "statement" in section 339(2) Criminal Procedure Code, refers to either the statement of the approver before the committing Magistrate or his statement at the trial, or to both. They do not include statements under section 164 made by the approver in the course of the investigation. (7956; 8 DLR (F.C.) 1.

 

—Statement made under section 164, Cr.P.C. is relevant against the maker thereof when they are recorded in compliance with the provisions of section 364 Cr.P.C. (1956) 8 DLR (F.C.) 1.

 

Recording Magistrate not called as a witness-—Confession admitted in evidence without being proved by the Magistrate who recorded it— Circumstances to put the confession in evidence under section 33, Evidence Act, not proved.

 

Held : The confession is not admissible. (1951) 3 DLR 383.

 

—The provisions of section J64 do not in any way affect the admissibility of a statement made by a person, if it falls within section 32 of the Evidence Act. (1951) 3 DLR (FC) 388.

 

—The word "statement" in section 164(1) includes statements of witnesses or deceased persons and must conform to the provisions of Chap. XXV, Cr.P.C., if it is intended to be used as statements made during investigation under Chap. XIV of the Code. (1951) 3 DLR (F.C,) 388.

 

_—Section 24 of the Evidence Act applies to statements made by an approver under section 164 and operates to exclude such statements from evidence. (1955) 7 DLR (FC) 123 (129).

 

—A confession which may be true but not voluntary is not admissible in evidence at all. (1955) 7DLR 633 (636)(rt.hand col.).

 

—The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of his inability.(1951) 3 DLR (WPC) 505.

 

—Confession recorded in narrative form and not in questions and answers— Confessions under section 164 taken down in a narrative form do not render them inadmissible in evidence 'on the plea that they ought to have been recorded in the form of questions and answers.(1951) 3 DLR (WPC) 505.

 

—A statement under section 164 cannot be used as substantive evidence; it can be used in cross-examining the maker thereof only to show that it was false. (1956) 8 DLR 404 (407).

 

—A statement under section 164 can properly •be used to enable the jury to decide whether the evidence put in under section 288, Cr.P.C. or the evidence in the sections is to be preferred. (1956)8 DLR 404.

 

—Previous statements made under section 164 can be used for the purpose of corroborating or contradicting the subsequent statements made in the committing Court or.in'the Court of Session. (1954) 6 DLR (WPC) 188.

 

Value of statementA person whose statement is recorded is more or less wedded lo the same. Deposition ef a witness whose statement was recorded under section 164 cannot be doubted simply on the ground that section 164 was resorted lo, (1954) 6 DLR (WPC) 213.

 

—Confession    while    the    accused  in I custody—Accused during the period between his' arrest and his confession remaining in Police I custody for a fortnight.—Confession inadmissible. Haji Year Muhammad Vs. Rahim Dino (1961) U DLR (WP) 58 : (1960) PLD (Kar.) 769.

 

—Section 25 of the Evidence Act has nothing to do with the confession of an approver recorded > under section 164 before a pardon is tendered to him, ' because the confession is not the statement of a | person who is being tried as an accused when the confession is tendered in evidence. (7955) 7 DLR \ (FC) 123 (129).

 

_—Confession   by   an   accused  before I the     commencement     of    investigation, | Confession by an accused before the commencement oT investigation is admissible in evidence though, such confession does not fall within the provisions of section 164 and though the prescribed formalities are not observed. Abul Hossain Vs. State (I960) 12 DLR 110;( 1960) PLD 438.

 

—If no pardon has been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to the restrictions of that section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness the former being without and the latter being on oath. (1955) 7 DLR (FC) 123/129.

 

—Satisfaction of the Magistrate that the confession was voluntary.—Putting only of questions prescribed in the printed form—not enough. (1955) 7 DLR (WPC) 45 (53).

 

—Magistrate who recorded the statement of witness which is not a substantive evidence and can only be used for corroborating or contradicting may not be called as a witness to prove the statement. Anwar Hossain Vs. Prov. ofE.Pak. (I960) 12 DLR 615.

 

—In order to ensure the voluntariness of a confession, the questioning of the accused before he makes the cbnfcssion forms an essential factor. The Magistrate must question the accused in pursuance of a real endeavour to find out the object of it.

When there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole. (19J7) 9 DLR 46.

 

— In course of the investigation' means investigation which is in progress and a statement under this section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. (1953) 5 PLD (Lah.) 495.

 

—After the recording of confession the accused person should be sent to the judicial custody and not to the police custody. Wazir Vs. State (1961) 13 DLR WP 5: (1960) PLD (Kar.) 674.

 

—A statement recorded by an incompetent Magistrate is admissible. 5 PLD (Lahore) 495.

 

—When a person is made an approver, his statement has clearly resulted from an inducement but, when such a person is a witness, section 24 of, the Evidence Act can have no application, as his statement is not being used as a confession but as a piece of evidence against persons other than himself. Nor would such a statement be inadmissible on the ground that it was not recorded in terms of section 164(3), Crf.C. (1955) 7 PLD (Lah.) 375.

 

—Statements made under section 164 is relevant against the maker (accused) thereof when they are recorded in compliance with the provisions of section 364. (7950; 2 PLD (Lah.) 364.

 

Non-compliance   with   the   provision

Where the Magistrate recording the confession had failed to follow the requirements of law as set out in sections 164 and 364,Cr.P.C. but had subsequently  ' been examined as a witness under the provisions of section 533, Cr.P.C.

 

Held : The evidence of the Magistrate cured the irregularities and that the confession was not inadmissible in evidence. 2 PLD (Bal.) 1.

 

Admissibility—Confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. 2 PLD (Lah.) 68.

 

—Confession before Magistrate—No

formalities of law observed-—confession is not admissible in evidence. 2 PLD (B.J.) S.

 

—Warning to the confessing accused-Warning to the confessing accused must be given before commencing the recording of the confession. Magistrate must be satisfied that confession is voluntary and record of the confession must indicate that the confession was voluntary. Said Begum Vs. State (1959) 11 DLR (WP) 22 : (1958) PLD (Lah.) 559.

 

—It is not necessary that warning to the confessing accused should be given "immediately" before recording the confession. —Warning need be given afresh when continuity of recording the confession is broken. (AIR 1946 Pat. 169; AIR.

 

7925 Cal. 587 and AIR 1954 Bom. 285 distinguished. AIR 1933 Mad. 74 and AIR 1930 Sind305 refJSheru Vs. State (1959) 11 DLR (WP) 28.

—Confessional statement, oral as well as in writing made by the accused before a Magistrate to whom the accused came voluntarily and who was then put under arrest—Magistrate's evidence to prove accused's confession.

Held : The. accused's statement admitted into evidence in the present case, though of a confessional nature was not hit by the rule laid down by the Judicial Committee in the case otNazir Ahmed Vs. King Emperor. The Magistrate concerned was empowered under section 190(l)(c) of the Criminal Procedure Code to act upon the information furnished and, as such, the information upon which he acted was admissible. Apart from this it cannot be said that the rule laid down in the above mentioned case excludes all confessional statements or admissions. Faqira Vs. State (1966) 18 DLR (SC) 283.

 

—Confession, its test : A statement is confession, if it be of such a nature that it alone can be the basis of conviction—A statement containing self-exculpatory matter is never a confession—The accused in their statements admitted their presence at the murder but did not directly admit their guilt in terms of the offence.

 

Held : Such judicial statements cannot be treated as confessional statements. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

Judicial statement : Incriminating portions of the judicial statement were corroborated by other evidence on record—Admission of presence by the accused persons on the scene of murder—The very admission of presence on the scene indicates that the accused had complicity in the crime and the murder took place in furtherance of their common intention. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

—Confession, its meaning : Confession means admission of the guilty in terms of the offence—Confession must either admit in terms the offence or at any rate substantially all the facts which  constitute  the offence.  The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

—Judicial confession : Magistrate recording confessional statement did not tell the accused that he would not be sent back to police custody—Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge—Held : Judicial confession, under the circumstances, was voluntary and true. State Vs. Lulfor Fakir, (1972) 24 DLR 217.

 

—No statutory obligation that the confessing accused shall be given 3 hours;time to reflect before his confession is taken down. Hari Pad Debnath Vs. Slate, (1967) 19 DLR, (Dae.) 573.

 

—In a trap case confession of the accused before a Magistrate supervising the trap is a judicial confession and such confession must be recorded under sections 164 and 364—failure of which renders it inadmissible. Gulam Abbas Vs. The State, (1968) 20 DLR (WP) 48.

 

—Confessional statement may be accepted if it is made after long detention in the police custody and even if some formalities of confessional statements found are omitted. Confessing prisoner in police custody for more than 24 hours-Confession admissible unless other vitiating elements are present. Niab Ali Vs. The State, (1969) 21 DLR 122.

 

—Investigation about the offence of receipt of bribe money does not commence when the demand for bribe was made—Statement by an accused person in a trap case under the Anti-Corruption Act to a Magistrate or a Police Officer is admissible in evidence and not being one in the course of investigation is not as such hit by section 164 or section 364, Cr.P. Code.

 

Provision of Pakistan Special Police Establishment Ordinance (VIII of 1948) and that of West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) are inconsistent with what has been provided in Chapter XIV, Cr.P. Code regarding information to the Police and the matter of investigation and to* the extent of inconsistency, the former prevails over the Chapter XIV of the Cr.P. Code.

Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by,the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.

 

—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.

 

—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.

If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs; The State (1968) 20 DLR(WP)48.

 

—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose. This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (1969) 20 DLR 526.

 

—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled.

 

When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by obs'erving all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran All Vs. State (198$) 37 DLR 1.

 

—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The Slate (1983) 35 DLR 119.

 

—Statement recorded B/s.464 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/ss.l45 and 155 of the Evidence Act or for the purpose of corroborating former prevails over the Chapter XIV of the Ct.P. Code.

 

Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.

 

—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.

 

—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.

If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs. The State (1968) 20 DLR(WP)4

 

—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose.

 

This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (196&) 20 DLR 526.

 

—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by observing all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran AH Vs. State (1985) 37 DLR 1.

 

—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.

 

—Statement recorded 8^8.164 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/se.145 and 155 of the Evidence Act or for the purpose of corroborating him u/s. 157 of the Evidence Act. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.

 

—When servant possesses the properly in the temporary absence of the master, he cannot say he is in actual possession as contemplated under sec. 745. Md. Yasin Ali Vs. Abur Razzak (1978) 30 DLR 191.

 

—Agent, caretaker or a servant can possess the property in dispute on behalf of the principal or master, vis-a-vis a 3rd party. In such a circumstance mere physical possession cannot be treated as an actual possession as against the master. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

—Dispute, its connotation—Law will protect the party who is in possession. — Possession taken in defiance of law will not be allowed. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

—Actual possession means exclusive possession: object of S.145 is to maintain and preserve public peace. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.

 

S 145(1)Filure to state in the final order that an apprehension of the breach of peace exists— not final. Abdur Rahim Vs. Malik Wahid Bakhsh (1971) 23 DLR (Lah.) 3.

 

—Cinema film : Although the expression "land or water" includes buildings, it is obvious that where the dispute was not concerning the building of a cinema but concerning the film that was to be exhibited in it. Held: The case is not covered by section 145. 2 PLD (Lah) 124.

 

—Bonafide right to the property.

The section could be invoked where contending parties are not in actual possession but have a

bonafide right to succeed to the subject of dispute. / PLD (Lah.) 397.

 

Ss.145(1) & 146(1)Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam Ali Vs. State (1975) 27 DLR (AD) 37.

 

S. 145(1)(4)Applies to disputes over lands in joint possession (1953) PLD (B.J.) 59.

 

—S.145(I)(5)—Proceeding    drawn    up under   section   145(1)   cannot   be   dropped unless "  provisions     of     sub-sec.     (5) .complied   with.

f Proceeding once drawn up under section 145(1) of the Code cannot be dropped unless the provisions of sub-section(S) of the Code, which runs as follows, are complied with.' "When the parties have compromised their dispute or the person intiating the proceeding has given up his claim of possession or when the Magistrate is satisfied that the apprehension of breach of peace which was the sine qua npn for drawing up a proceeding has ceased to exist." Md. Ibrahim Vs. Mukbul Ahmed, (1970) 22 DLR 128.

 

Preliminary order to be cancelled when no dispute exists—There can be no justification for restricting the power of cancellation of preliminary order under section 145(1) to only cases where the parties have compromised their dispute or the person initiating the proceedings has given up his claim to possession. The sub-section imposes no such restriction. Where any party to the dispute or any other person interested has appeared and denied that any such dispute exists or ever existed then he is entitled to lead evidence to establish his contention, and if the Magistrate comes to the conclusion that no such dispute exists or existed, then the Magistrate is not only entitled but is also bound to cancel the preliminary order. Provisions of section 145 indicate that there should be a continuing danger of a breach of peace till the time the final order is made. Manzoor Elahi Vs. Bishambar Das (1964) 16 DLR (SC) 246.

 

8.145(3)—Service of the order, Consequence of non-service—Failure of service of the order under sub-section on the person and its publication at a conspicuous piace does not render the proceedings illegal, if no prejudice is caused. It is necessary that the Magistrate should act in strict compliance with sub-section (3) of section 145 regarding service of the order in order to avoid any such question being raised. Gulam Ahad Vs. Samser All (1960) 12 DLR 801 : (1961) PLD (Dae.) 499: (1960) 10 PLR 816.

 

—Copy of the order not servedParties present—If all the parties interested in the dispute, in a proceeding under section 145, appear and the enquiry is held in their presence, the order of the Magistrate cannot be impugned on the ground that copy of the order was not served upon the proceeding land and the parties. Entakuddin Vs. Sk.Yaqub 3 DLR 327.

 

S.145(3)(4) : Magistrate is not justified in taking action under section 145(4) CrP.C. when the fact of pendency of civil litigation between the parties over the disputed property is brought to his notice and especially when security proceedings over the same are pending in his court—Circumstances under which Magistrate is not empowered to take action under section 145 Cr.P.C. discussed. Ghulam Habib Vs. The State (1976) 28DLR(WP) 11.

 

8.145(4) & 146 : Violation of an order or decree of Civil Court passed in respect of a property in a suit is an offence which is not a "dispute" within the meaning of section 145 and such violation docs not attract section 145—In such case violators are liable for contempt of Court. Shah Muhammad Vs.'Huq Nawaz, (1971) 23 DLR (SC) 14.

 

Ss. 145(4) &   146   :   Civil   suit   when pending about the disputed land.

Because of a civil suit regarding the question of title and possession of the disputed land is pending in a Civil Court it is no bar for a Criminal Court to enter and decide the question of possession as envisaged under section 145 Cr.P.Code. Pran Ballav Sutradhar Vs. Shamsul Huq (1970) 22 DLR 662.

 

8. 145(4) and S. 146 : If possession is  I found with one party sub-s.(4) of s.145 will apply. If no decision can be arrived at as to possession, s. 146 will apply. Jamila Mannan Vs. Aminur Rasul, (1984) 36 DLR 31.

—8.145(4) : Attachment of property under section 145(4)—Man appointed to the custody of the property is an agent of the Court and works under its direction. Abul Hashem Dewan Vs. S.D.O. Madaripur, (1968) 20 DLR 22.

 

8.145(4)     :     Question     as    to    the attachment   of   disputed   property   either I u/s.   145(4)   or   u/s.!46(I)   is   one   for the Magistrate  to  decide.

The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-seclion(4) of section 145 or sub-section(I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facts and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-. section(I) of section 146 of the Code in pursuance of direction 'given by the High Court. That direction calling upon the learned Magistrate to attach the I land once again, if it had already been released, was, however, not a proper direction. Adam All Vs. State (1975) 27 DLR (AD) 38.

 

—Satisfaction referred to in sub-sec. (4) of S. 145 of -the Code is the satisfaction of the Magistrate. His satisfaction cannot be replaced by that of a Court in Revision. The learned Magistrate on consideration of relevant facts and the Police report was not satisfied that "there was no likelihood of breach of the peace." In the circumstances we do not see any reason to interfere with his order. Abdul Farah Molla Vs. A.K.M Mozammel Huq (1975) 27 DLR 260.

 

__.—Magistrate u/s 145(4) is called upon to decide which of the parties was in possession of the disputed land on the date of passing the preliminary order under sub-s. (4). Musharaf All Vs. Zahir Ahmed (1977) 29 DLR 412.

 

—Question of possession to be decided by the Magistrate.

Whether they are in possession or not will be decided by the Magistrate after taking evidence as required under sub-section(4) of section 145 Cr.P.C. Sullanuddin Vs. Murshed Ali (1977) 29'DLR 73.

 

—"2nd proviso—Expression "at any time" explained—

Since the power to make an order of attachment is contained in the second proviso to sub-section (4) of section 145, Cr.P.Code its exercise is restricted to a situation which obtains only after the provision of sub-section (3) have been complied with. The expression "at any time" used in the proviso is referable to a point of lime which begins after a copy of the preliminary order made under sub­section (1) has been served upon the parties. On the contrary, if the expression is considered to have reference to the point of t;me when the preliminary ordcr'is or about to be passed undcr-sub-scction (I) this would lead not only to the violation of one of the principles of natural justice but would also contravene the express provisions of sub-sec. (3) of section 145 which have expressly incorporated this principle. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974)26 DLR 291

 

—Emergency, referred to in the 2nd proviso to S. 145(4) relates to control of the property in dispute and not to breach of the peace.

The emergency referred to in the 2nd proviso to S. 145(4) merely relates to control of the property in dispute and not to the breach of peace likely or which has already arisen. The oft-repealed apprehensions that unless ihe Magistrate is found to possess the power to atlach property in dispute as soon as he passed the preliminary order under sub­section (I), he may not be able to prevent the breach of peace arc without any foundation. If the breach of peace is so imminenl as lo lead to immediate loss of lives and breaking of heads, if the sole aim is hot to allow the breach of peace over any immovable property, the Magistrate has, under the Code of Criminal Procedure, ample powers to lake appropriate preventive measures relating to the same. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974) 26 DLR 291.

 

—Auction  of the  proceeding lands—A

court or public servant or any person who holds auction of any property has the power and jurisdiction to lay down the conditions of auction. A court of law may only see that the condition or condilions are not unconscionable, illegal or unreasonable. Abdul Hamid Vs. The State (1981) 33 DLR 399.

 

—Steps which the Sub-divisional Magistrate may take for custody and management of the land attached.

After attachment of the proceeding lands under the second proviso to section 145(4) the Sub-Divisional Magistrate had lo lake steps for proper custody and maintenance of the proceeding lands. The effect of an attachment under ihc second proviso to seclion 145(4) is lo bring the property under the control of the Magistrate. He may lake such steps as he ihinks fil for ils proper custody and management in order to prolccl ihc interest of the property attached. He may grant lease of ihc property by public auction so as to continue to earn for the property an income. If he slipulalcs thai ihc bid money already deposited will be forfeited if ihe balance of ihc auction money is nol deposited by the highesl bidder within ihc lime granted then it cannot be said that he has put a condition either illegally or unreasonably. Abdul Hamid Vs. The Stale (1981) 33 DLR 399.

 

S.  145:  2nd  Proviso  to sub-sec(4).

Per Justice Badrul Haider Chowdhury (with whom Justice Amirul Islam Chowdhury concurred). Order of attachment can be passed at any moment when the case is pending before Ihe Magistrate if Ihc Magislrale is satisfied lhal .emergency of ihe situation demands that. It is not necessary lhal notice must be served on the parlies to appear and submit statement. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.

 

—Per A.T.M.Masud. J. (dissenting from the majority view) Magistrate is not empowered to pass an order of atlachmcnl under the 2nd proviso withoul: compliance wilh the provisions of subsection(3). of seclion 145 Cr.P.C., i.e. before serving copy of the order on ihc parlies concerned. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.

 

Party's possession is to be determined after compliance with the provisions of sub s. (4) of s. 145— Decision of the question of possession without hearing the 2nd party is illegal.

- Under sub-section (4) of section 145 Cr.P.C. the Magistrate is to enquire as to possession of the parties receiving all such evidence as may be produced by them and if necessary on taking such further evidence as the learned Magistrate thinks proper. It is after complying with all the mandatory provisions of sub-section (4) of section 145 Cr.P.C. that the learned Magistrate is to decide which of the parties was in possession of the disputed property at the date of the order of drawing up the proceedings. Osman Gani Vs. Beshamddin Ahmed (1980) 32 DLR 53.

 

8.145(4) : Two months' limit: The proviso to sub-section(4) of section 145 must be construed literally. If the party is found to have been forcibly and wrongfully dispossessed on a day outside two months next before the dale of the order, then the proceedings must be dropped. Debendra Vs.Khandaram(1951)3DLRH9.

 

—Dispute over possession—Police report about possession not admissible in evidence. Syed Zaman Khandakar Vs. Zubfda Khatun (1973) 25 DLR 317.

 

Ss.l45(4) & 146—Appointment of receiver—When can be made. Attachment of property can be made at any stage of the proceeding under section 145(1) Cr.P.C. provided the Magistrate considers the case one of emergency but appointment of receiver can only be made after an enquiry is held under section 145(4) and when the conditions laid down in section 146 Cr.P.C. exist, that is, if the Magistrate decides that none of the parties was then in possession or unable to decide which of the parties thereto was then in such possession. Asghar Vs. The State. (1970) 22 DLR (WP)305.

 

—Receiver, if can be appointed under section 145—Appointment and power of a receiver appointed under section 146.

Section 145 is silent about the appointment of receiver. Even though no prohibition can be spelt out, there is no provision for his appointment until the stage of section 146 of the Code is reached. A Magistrate while holding an enquiry under section 145 may, however, "attach the subject of dispute pending his decision under this section," as laid down in the second proviso to sub-section(4) of section 145.

The appointment of a receiver under section 146 of the Code takes place when after full enquiry under section 145, a Magistrate reaches the conclusion that none of the parties was in possession of the ' disputed property or he is unable to find as to which of them was then in possession of the disputed property. Abui Ilashem Dewan Vs. S.D.O. Madaripur (1968) 20 DLR 22.

 

—Where a Civil Court is in seixin of a disputed property in respect of which the Court has appointed a Receiver or has passed a decree, the Criminal Court is incompetent to proceed against the same property or appoint a Receiver in respect of iL'Shah Muhammad Vs. Haq Nawaz, (1971) 23 DLR(SC) 14.

 

S. 145(4)—Criminal Court has no jurisdiction to attach any property while the same property is a subject-matter of a civil dispute and in respect of which the Civil Court has passed an order of injunction to maintain status quo or passed a decree. Shah Muhammad Vs. Haq Nawaz (1971) 23 DLR (SC) 14.

 

—Question of title : Investigation into the question of title barred, except in exceptional circumstances. Where a Magistrate has any difficulty as no evidence as to actual possession is available, he may accept such evidence as to title as may be given by the parties in order to determine the question of actual possession. Altaf Ifussain Vs. Abinas(1955) 7 DLR 47.

 

—Magistrate acting under this section has to decide the -possession of the subject of dispute without reference to the merits of the claim of any party. He is not concerned with previous possession or how possession was obtained. Yunus Miah Vs. Abdur Rashid (1969) 21 DLR 322.

 

-S.I45(4) & (5) : For dropping proceedings under sub-section (5) of section 145 of the Code, Magistrate not bound to hold enquiry under sub-section (4) of the same section-Magistrate, when satisfied that there is no likelihood of any breach of peace, not bound to give parties opportunity to establish the contrary. Mansur All Rari Vs. Chinta llaran Das (1970) 22 DLR 367.

 

8.145(4) : In the present case there was no material before the learned Magistrate for his finding lhat the 1st party was in possession. The learned Magistrate was required to find out which party was in possession on the date of drawing up proceedings i.e. on the date of the preliminary order as contemplated in sub-scction(4) of section 145 Cr.P.C. MdJsrail All Vs. Md. Numl Islam (1977) '29 DLR 37$.

 

—An order on the issue of possession passed as required by sub-scction(4) of S.145, not in the presence of both the parties and without hearing ihem is not lawful order. Md. Israil All Vs. Md. Nurul Islam (1977) 29 DLR 377.

 

Hear the party, means "hear the arguments of the party",

On 24.10.70 there was an order like this "case received on transfer, parties arc absent. To 11.11.70 for judgment." It appears that the date of judgment was fixed without hearing arguments of the parties. The Magistrate did not hear any argument of the first party even. It does not appear lhat any opportunity was given to the parties for placing their arguments through their lawyers, The expression "hear the parties" as appearing in sub-section (4) of section 145 also means hear argument of the parties. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.

 

8.145(4) : The expression "land and water"what it means.

The expression "land and water" in sub-s.(4) of s.145 of the Code includes building, markets, fisheries, crops of other produce of land, and the rents or profits of any such property. Md. Hossain Vs. Kalachand (1983) 35 DLR 229.

 

—If the Magistrate considers the case as one of emergency, he may attach the land in dispute pending his decisions under this section. Likelihood of breach of peace over possession of land gives the Magistrate power to draw up proceeding u/s. 145, but if attachment of the land is to be ordered, the Magistrate must state that, he considers the case as one of emergency. Abu Sadek Vs. Md. Nurul Mam. (1984) 36 DLR 141.

S. 145(5)—No dispute whereby to cause breach of peace exists—Magistrate loses jurisdiction. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.

 

—Attachment of disputed property and simultaneous appointment of receiver valid. The court has inherent jurisdiction to pass any interlocutory order in the exercise of its jurisdiction. The order that was passed by staying the operation" of the order relating to attachment and appointment of receiver was clearly available to the learned Magistrate. No exception can therefore, be taken against it. M.S. Alam Vs. Kanak Chandra (1979) 31 DLR (AD) 150.

 

Proceeding drawn when cannot be dropped.

Proceeding once drawn under section 145(1) of the Code cannot be dropped unless there arc materials on record before the Magistrate fo show that the apprehension of breach of peace which gave rise to the proceeding, has disappeared since then or the parties have amicably settled up the dispute, Syed Ahmed Jamil Vs. Kabir Ahmed, (1970) 22 DLR 231.

 

Sec. 145(5) : Section 145 indicnfcs thai there should be a continuing danger of a breach of' peace and use of the word "exists" in the present tense in sub-section (5) connotes that the dispute must continue to exist even.at the time when the objection is raised. Sajahan Vs. Sessions. Judge (1986) 38 DLR (AD) 246.

S. 145(6)—Order u/s. 145(6) has- to be made in case of an emergency.

 

The overriding consideration of an emergency would be the guiding factor in giving jurisdiction to the Magistrate to pass an order because an order passed under the second proviso to sub-section(4) of section 145 Cr.P.C. would be passed only in case of an emergency. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—Under section 145 Cr.P.Code the Magistrate is to decide which of the contending parties is in actual possession of the disputed property without going into the question of title and maintain that party in possession until he will be evicted therefrom by decision of a Civil Court instituted by the party who has been prohibited to disturb the possession of the other party. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286,

 

—An order u/s. 145(6) is final in between the parties and their successors—Only remedy thereafter is for the unsuccessful party to sue in civil court whose decision shall be binding and the Magistrate would put the successful party in possession of the disputed property in accordance with the decision of civil cowUIarunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the civil court. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.

 

—A final order under sec.145(6) should indicate proper consideration of the evidence in its true perspective.

It is clear that there has been some prejudice caused to the first party for pronouncing the order without giving the parties to place their arguments. True it is that the final order in a proceeding under section 145 need not be like a judgment as provided in section 367 of the Cr.P.C. Nevertheless, it should show that it has been pronounced on proper consideration of the evidence in its true perspective. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.

 

—Sub-section (6) of section 145 provides that when the Magistrate has found upon enquiry the . possession in favour of one of the parties he shall declare such party to be entitled to possession thereof until evicted therefrom in due course of law and he may also restore the party, which has been forcibly. and wrongfully dispossessed, to the possession of the property. Adam All Vs. State (1975) 27 DLR (AD) 37.

 

—The object of the proceeding under this section is to avoid breach of peace and to maintain status quo as to possession of dispute property provisionally without determining the right of the rival parties to possession. S.MJaffar Vs. A.Q. Shaukat (1969) 21 DLR (SC) 43.

 

—Petition to Magistrate asking to take action under section 145. Magistrate on his own satisfaction can draw up proceedings and transfer to another Magistrate for disposal. Alternatively , he may transfer the petition itself to another Magistrate for disposal according to law. Haji Nazar Md. Vs. Harisuddin (1955) 7 DLR 97.

(The head-note of the case reported in 2 DLR 27   i has been corrected after the above decision).

 

—Cost awarded : Cost awarded to one party to be paid by another—Reason for assessing the cost should be stated in the order. Serajul Islam Vs. A. Rouf (1951)3 DLR 202.

 

—When no such apprehension of breach of the peace exists an order passed under sub-section (6) of S.145 would be illegal. Kalu Howladar Vs. AminuddinTalukdar (1976) 28 DLR 430.

 

—Criminal Courts acting under section 145 come within the plain meaning of section 12(1) of the Pak. (Administration of Evacuee Property) Ordinance of 1949 which lakes away jurisdiction of Criminal Courts from issuing all legal processes in respect of evacuee property. Malik Md. Sharif Vs. Crown (1954) 6 DLR (WP) 220.

 

S. 146 : Trying Magistrate can attach the disputed property only when he finds which of the contending parties are in possession of it or he can not find which party is in possession. As to whether there is any apprehension of breach of peace it is for the Trying Magistrate to decide on his satisfaction about that. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

S.146—appears to be a follow up of section 145 of the Cr.P.C. as is evident from the expression "then in such possession" occurring in Sub-section(I) of section 146. Reference may be made to sub-sections (I)(4),(5) and (6) of S. 145 of the Code to ascertain the true import of the said expression. Mam Ali Vs. State (1975) 27 DLR (Appl. Division) 37.

 

—S.146(I) Proviso.—The proviso to section 146(1) of the Cr.P.C. confers powers upon the Magistrate to withdraw attachment if he is satisfied that there was no longer any likelihood of breach of peace in regard to the subject of dispute and if the discretion has been exercised properly (here is no case for any interference by a rcvisional court. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

S. 146(1)Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam AH Vs. State (1975) 27 DLR (AD) 37.

 

S. 146(1) : Question as to the attachment of disputed property either u/s.l45(4) or u/s. 146(1) is one for the Magistrate to decide.

 

The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-section (4) of section 145 or sub­section (I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facls and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-section^) of section 146 of the Code in pursuance of direction given by the High Court. That direction calling upon the learned Magistrate to attach the land once again, if it had already been released, was however, not a prpper direction. Adam AH Vs. State' (1975) 27DLR (AD) 38.

 

S. 146(1): Empowers attachment of the property when it is not possible which party is in possession of it. Withdrawal of the attachment order when apprehension ceases. Sub-section(I) of section 146 confers the power of attaching the subject of dispute if the Magistrate decides that none of the parties was "then in such possession." or when he cannot satisfy himself as to which of them was "then in such'possession" of the subject of dispute. The proviso to the sub-section empowers the Magistrate concerned and the District Magistrate to withdraw the order of attachment on being satisfied that there is no longer any apprehension of breach of the peace. Sub-section(2) empowers the Magistrate concerned to appoint a receiver while attaching the subject of dispute. Adam All Vs. State (1975) 27 DLR (Appl. Divn.) 38..

—Magistrate is competent to withdraw an .attachment on his satisfaction that there is no more any likelihood of breach of the peace in regard to the Land in dispute. Abdul Gani Bepari Vs. Shahed Alt Majhi (1969) 21 DLR 327.

 

S. 146(1)(2) : Jurisdiction to attach disputed property when arises.

It arises only if the Magistrate, upon an enquiry held under sub-section(4) of section 145, comes to a finding that neither party was in actual possession of the same on the date of the preliminary order made under sub-section(I) of section 145 of the Code, or he is unable to satisfy himself as to .which of them was in such possession on that date. It, therefore, follows that in the absence of any such negative finding on the question of actual possession of the subject of dispute, it cannot be attached under sub-section(I) of section 146, nor can a receiver thereof be appointed under sub-section (2) of the said section. Adam AH Vs. State (1975) 27 DLR(Appl. Divn.) 38.           

 

S. 147 : Direction to a party to remove obstructions without first requiring them to put-in written statements of their respective claims is illegal. Mahabhat All Sarkar Vs. Jahur All (1957)9

DLR 257.

 

S. 154First Information Report. A FIR is not in the nature of formal charge. (1952) 4 DLR (FC) 53 (P-69, r. h. c.).

 

—The accused of his own accord went upto the police-station and there to the officer-in-chargc he made a report confessing his guilt and this was recorded under section 154, Cr.P.C.

 

Held : This report at the police-station is not admissible in evidence. Md. Bakhsh Vs. State 9 DLR (SC) 11.

 

—Evidentiary value—First Information Report does hot increase the weight of the evidence of anybody save and except of the informant and cannot in law be used to increase the weight of the evidence of any person on whose behalf it has been lodged. And to say to the jury that it does so increase is a serious mis-direction. Keramat All Sheikh Vs. Crown (1952) 4 DLR 435.

 

—The presence of the witnesses1 names in F.I.R. is only a test for determining whether they were present at the time of the occurrence or not. it is no more proof of their veracity than the absence of their names in the report is proof of their mendacity. Khera Vs. Crown (1957) 9 DLR (WP) 9

 

—Telegram, if can be treated as F.I.R.— Unsigned telegrams and telephone messages are not First Information Reports and if, after the receipt of a telegram or a telephonic message, the police proceed to the spot and take down the information and get it signed, the statement would be the First Information Report. Crown Vs. Faiz Mohammad 2 PCR 210.

 

—A First Information Report cannot be used to contradict any prosecution witness. It can be used to contradict only the witness who lodged it and that also in certain circumstances. Crown Vs. Abdul Bari (1950) 2 DLR 120.

 

—The prosecutor also has the right (with the permission of the Court) of contradicting the maker thereof. Such contradiction cannot be used as substantive evidence but can  be taken into consideration. Adalat Vs. Crown (1956) 8 DLR • (F.C.) 69.

 

—A First Information Report after the police investigation had started, being a statement of a person before the police, is inadmissible in evidence and could not be taken into consideration. Golam Quader Vs. Crown, 2 P.C.R. 17.

—First Information Report—Principle of natural justice, i.e., audi alleram partem, does not apply to the making of a F.I.R.—Opportunity of hearing the accused person before registration of a case is neither necessary nor possible. Muhammad Hayat Vs. The Chief Settlement & Rehabilitation Commissioner (1971) 23 DLR (Lah.) 34.

 

—Whether a statement recorded by a police-officer is an F.I.R. or a statement made in the course of investigation is one of fact. Muhammad. Siddique Vs. Crown (1954) 6 DLR (F.C.) 56.

 

—An entry made in the daily diary of the police station on receipt of a telephone message from a head constable to whom the report of the occurrence was staled to have been made by the complaint is not a first information report. Crown Vs. Faiz Mahammad2PCR210.

 

—First Information Report—All statements relating to commission of a cognizable offence made tc the police before commencement of investigation can be treated as First Information Report—But such statements cannot be used as substantive evidence. The State Vs. Bakmir (1970) 22 DLR (WP) 27.

 

—First Information Report was made within half an hour of the occurrence but it was sketchy and made no mention of motive—Held, the F.I.R. gives an impression of being genuine and reliable. Mumdiali Vs. The Slate (1970) 22 DLR (WP) 158.

 

—Where a Chawkidar arrived at the thana and reported the occurrence to an S.I. of Police who did not record the statement of the Chawkidar in writing but recorded the statement of another person, who arrived at the thana later on, as the First Information Report in the case

—Held : The information given by the Chowkidar being the first in point of time was the First Information Report in the case and the Sessions Judge was wrong in allowing the latter statement to go to the jury. Jamshed AH Vs. Crown (1953) 5 DLR 369.

 

—If there is an information relating to the commission of the cognizable offence it falls under Sec. 154, even though the police officer may have neglected to record it.

 

The condition as to character of statements recorded in Sec. 154 is two fold: first, it must be information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events; It was never meant that any sort of information would fall under section 154 so long as it is first in point of time. Jamshed All Vs. Crown, (1953) 5 DLR 369

 

—Even when an information is given orally under section 154 and the police-officer docs not reduce it to writing, he acts in an irregular way. And while investigating the truth or otherwise of the information, he is carrying on an investigation.to which provision of &• 162, Cr.P.C. applies.

 

—First Information Report at the place of occurrence after preliminary investigation— Inadmissible in evidence. All Sher Vs. Slate (1966) 18 DLR (WP) 112.

 

S. 154 : Accused in the FIR making confession—not admissible. Confessional statement of an accused incorporated in the FIR lodged by him is hit by the provision of section 25 of Evidence Act and as such not admissible against him. State Vs. Ghandal (1961) 13 DLR (WP) 62.

 

—First Information Report. A FIR is not in the nature of a formal charge. (1952) 4 DLR (FC)

53.

 

—Its use and effectiveness—N-ot a substantive evidence. FIR is not a piece of substantive evidence and any omission or contradictions found therein can only be used to discredit the maker thereof. At the same time it is a very valuable and important document, and if the case set up at the very earliest moment is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of ihc Court which needs to be cleared up and explained satisfactorily. WazirVs. Slate (1961) 13 DLR (WP) 5: (1960) PLD (Ka.) 674.

 

—FIR lodged by the complainant party was followed by one filed by the accused party after li/2 hours. The later information to be treated as not made in the course of investigation, but it is not a substantive evidence. All Zaman Vs. Stale (1963) 75 DLR (SC) 107 : 1963 PLD (SC) 152.

 

— FIR—Its use and importance cannot be used as a substantive evidence, but for the purpose of contradiction—Absence of witnesses name in the FIR—what can be inferred therefrom—Weight to be attached to FIR.—The scope of its use. The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the police. It may not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegation against accused. When it is made by an alleged eye-witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances arc not unknown where the prosecuting police have found the first information report to be totally false, and in such a case it is their practice, as well as their duty, to show how and why they came to that conclusion, and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report. Siraz Din Vs. Kala (1964) 16 DLR (SC) 94

 

—Use of FIR can be used for corroborating or contradicting the informant alone and none else. Anis Mondal Vs. State (1958) 10 DLR 459.

 

S. 154The statements in the F.I.R. can be used merely for purpose of corroborating or contradicting the informant not for the purpose of proving that the facts alleged thrcin are correct. Sudhannaya Sarkar Vs. The State(1976) 28 DLR 59.

 

—FIR can legitimately be used for assessment of the whole prosecution case in the light of facts and circumstances of the case.

 

It is true that a first information report cannot be used to contradict any witness other than the informant; but the Court can and should take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of vital importance in the assessment of prosecution evidence.

 

The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above. State Vs. Basirullah (1964) 16 DLR 189.

 

—Delay in lodging FIR in a murder case by the culprit himself (confessing the crime)

To estimate the time of the occurrence from the time of the report in relation to the distance to the Police-Station is inappropriate in a case where the culprit himself goes to make the report. It would be understandable if he 'dragged his feet' somewhat. Md. Saleh Vs. State (1965) 17 DLR (SC) 420.

 

—First information report may be used to corroborate or contradict the maker thereof. Not to contradict third persons. 4 PLD (Lah.) 11.

 

—Witnesses evidence to the effect that they heard the deceased saying that he (deceased) recognised the accused persons when the deceased was not examined can not corroborate the F.I.R. which is not a substantive piece of evidence.

In the absence of the examination of the informant (Who is dead) we cannot corroborate the prosecution stories stated in the F.I.R, as the F.I.R. Js not a substantive evidence. Sidjannaya Sarkar Vs. The State (1976) 28 DLR 59.

 

—F.I.R. can be used to corroborate the testimony only of the informant.

F.I.R. may be put in evidence to corroborate only the testimony of the person who gave information incorporated in the First Information Report and not for the purpose of corroborating the evidence of any one else. Evidence of P.Ws, 3, 4, 5 and 7 in the present case before the Committing Magistrate and brought on the record of the trial court under section 288 Cr.P.C. cannot corroborate the story as given in the First Information Report. Sudhannaya Sarkar Vs. The Slate (1976) 28 DLR 59.

 

—The statement in the F.t.R. can be used merely for the purpose of corroborating or contradicting the informant and not for the purpose of proving that the facts alleged therein are correct. Sudhannaya Sarkar Vs. The State (1976) 28 DLR 59.

 

—First Information  Report

In the early morning "somebody" was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police "by somebody" is the First Information Report within the meaning of section 154 of the Cr.P.C. and all subsequent information fall within the purview of. section 161 of the Cr.P.C. Muslimuddin Vs. State. (1986) 38 DLR (AD) 311.

 

—First information report not a substantive piece of evidence. But where there is clear conflict between the version given in the F.I.R. and the story made out in the course of trial—it then becomes imperative to note the conflict between them. We arc conscious that a F.I.R. cannot be treated as a substantive piece of evidence, but we cannot help observing that this is a fit and proper case where a departure should be made. It has been held in the case of State Vs. Basirullah (1964) 16 DLR (Dhaka) 189 that the court is entitled to note the conflict between the first recorded version of the prosecution case and the story that was made out in course of the trial. A comparison between two such versions of the case is not only permissible but imperative in the context of the circumstances set out in the said reported case. Nay an Vs. The State (1985) 37 DLR 237.

 

—Accused named in promptly lodged F.I.R. supported by medical evidence. Majibur Rahman Vs. State (1987) 39 DLR 437.

 

—Delay in lodging of F.I.R.—The delay is to be understood in the light of the plausibility of the explanation and must depend for consideration on all the facts and circumstances of a given case—here it is the fear of the accused assassins. State Vs. Fazal. (1987) 39 DLR (AD) 166.

/

—Which one of several information about same occurrence to be regarded as the F.I.R.depcnds upon the facts and circumstances of each case. Touhid Mam Vs. The State. (1986) 38 DLR 289.

 

SsJ54 and 195(I)(c)' : An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s.195, Cr.P.Code. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s.211, Penal Code in which case the bar created by s.195 Cr.P.Code will not be attracted—When Magistrate takes cognisance of an offence u/s.211 Penal Code, on the basis of false allegation that does not attract the provisions imposed by s.195 (I)(c) Cr.P.C. Abdul Quander Vs. Serjuddowla (1986) 38 DLR 321.

—Police carries on a statutory duty under sections 154 and 156 in respect of a cognizable offence. Police submitting its report u/s.173 after investigation to the Magistrate who can, if he likes, direct fuflhcf investigation—Police in the matter of investigation enjoys wide powers to complete the same and the High Court can not interfere at the investigation stage—Submission of charge-sheet can not be treated as a finality of investigation, until cognizance of the case is taken by the Court. Bangladesh Vs.Tan KhengHock (1979) 31 DLR (AD) 69.

 

Ss. 154, 156 & 561A : Extra-ordinary power u/s.561A to be exercised sparingly and with utmost caution—interference at the investigation stage under section 156, not legal. Extra-ordinary power u/s 561A being extra­ordinary it ought to be used sparingly, carefully, and with utmost caution only where such exercise is justified by the tests laid down in the section itself. There is no doubt that under sections 154 and 156 of the Code the police having a statutory right to investigate a cognizable offence without requiring sanction of the Court, the inherent jurisdiction under section 561A of the Code can not be extended to interfere with investigation. Bangladesh Vs. Tan Khcng Hock (1979) 31 DLR (AD) 69.

 

First  information  report.

F.I.R. it being the earliest record of a case, it has got much importance. It enables the court to see what the prosecution case was when it-was started and to check up any subsequent embellishment or any departure therefrom as the case proceeds through different stages. Mafu Alias Mafizuddin Gazi Vs. The State (1979) 31 DLR 16.

 

—Where a witness does not substantially support his statement made under section 154 Cr.P.C. his evidence must be entirely ignored. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

Ss.154, 173 and 176 : Provisions of sees.154,173 and 176 explained.

The procedure for investigation by a police officer has been laid down in chapter XIV of the Code of Criminal Procedure from sections 154 to 176.

 

On completion of the investigation the police officer shall submit to the Magistrate a report in a prescribed 'form'. This report shall be either sending up the accused for trial or recommending that the case against him be cancelled. In the former case the-report is called final report. These two terms do not appear in section 173 or anywhere in chapter XIV. These terms have been provided in the Department Rules of the Police. Sub-section(2) of section 173 provides that a superior police officer may direct further investigation; but such direction can be given only.when the superior police officer has been appointed under section 158.

 

Section 158, of the Code relates to a report as to investigation of a case under section 157, that is, where commission of a cognizable offence has been suspected by the officer-in-chargc of a police station. State Vs. Abul Kashem. (1975) 27 DLR 342.

 

S. 155Charge-Sheet after investi­gation by the police without order from a competent Magistrate for offences under sections 465 and 471 of the Penal Code— improper. So far as offence under sections 465 and 471 of the Penal Code arc concerned, such offences are non-cognizablc by the police since the accused could not be arrested being charged under the aforesaid sections without any warrant from any appropriate criminal court. Sub-section (2) of section 155 of the Cr.P.C, says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such cases. The police investigated this case treating it as a cognizable case and did not obtain any order of any relevant Magistrate. Abdul Gaffar Munshi Vs. The State (1983) 35 DLR 76.

 

—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.

—Where a Police Officer takes up investigation in an offence under section 290. P.P.C.(case of nuisance) without the order of a Magistrate, the proceedings are illegal. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.

 

Ss. 155, 156, 157, 159 : Provisions of the sections explained.

Section 155 of the Code provides that no police1 officer shall investigate a non-cognizable case without the order of Magistrate of the first or Second class having power to try such case or commit the same for trial. Sub-sec.(I) of section 156 empowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157

 

of the Code lays down the procedure to be adopted in the matter of investigation, while section 169 provides that if upon an investigation it appears to the officer making the investigation that there is no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

S.155, read with sections 465 and 471 of the Penal Code.

Charge-sheet after investigation by the police without order from a competent Magistrate for officers under sections 465 and 471 of the Penal Code—improper. Abdul Gaffar Munshi Vs. Stale (1983) 35 DLR 76.

 

—S. 155(1) : Investigation of an offence by police under section 120 of the Railways Act without Magistrate's prior order and trial on the basis of police report is illegal under section 155(1). Slate Vs. Serajul Islam (1969) 21 DLR 99.

 

—S. 155(2) : If, out of several, one is a cognizable case S. 155 (2) creates no bar for investigation of such a case. Haider Jahan Vs. State, (1973) 35 DLR 455.

 

—A police officer is not competent to investigate a non-cognizable offence without the order of a competent Magistrate. Hussain Baksh Vs. Slate (1963) 15 DLR (WP) 33: 1963 PLD (Lah.) 46.

 

—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP). 33:1963 PLD (Lah.) 46.

 

Police investigation in non-cognizable cases without orders from competent .Magistrate, held illegal. Against the provision of law the police in the case of a non-cognizable offence' took up investigation and finally submitted a charge-sheet against the accused—Magistrate unaware of the provision of law took cognizance of the case and issued summons against the accused—whole procedure was illegal and quashed and accused discharged. Abut Hossain Sikder Vs. The State (1983) 35 DLR 200.

 

S. 155(2)—Read with sec 439(4) and S.439A(2).

Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s.427 Penal Code without taking Magistrate's permission for investigation. The Magistrate took cognizance of the offence and started proceedings against the accused—The Sessions Judge being moved against the Magistrate taking cognizance of the offence u/s. 427. Penal Code rejected the prayer for quashing.

 

Held: Sessions Judge's order in view of the provision of s.439 (4) Cr.P.C. Code is final. Siddique Ahmed Vs. The State (1985) 37 DLR 223.

—S.156 : Cognizable offence—Police has statutory right to investigate into a cognizable offence whether a report is made to that effect or not and if reported, irrespective of the authority of the reporter. Muhammad Hayat Vs. The Chief Settlement officer (1971) 23 DLR (Lah.) 34.

 

156(1) : Power of police to investigate a cognizable case—Should receive no interference from the judiciary—Investigation by the police under sec. 156 could not be stopped by a Magistrate. IPLD (Lah.) 87.

 

8.156(2) : Irregularity in an investigation does not affect the jurisdiction of the trial Court. Proceeding of a Magistrate during raid in respect of taking illegal gratification—not investigation. 8 PLD (Lah.) 87.

—Even, if the investigation had not been in conformity with the legal povisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact that the prosecution could not invoke section 156(2), in respect of an unauthorised investigation. 7 PLD (Lah.) 667.

 

8.156(3)Taking cognizance of and referring to police investigation. Magistrate not bound to take cognizance of complaint  made  and,   if  he   desires   Police investigation, he must straight away refer the case to Police under section 156(3). Azizur Rahman Vs. Slate (1960) 12 DLR 489,1960 PLD Dae. 631

 

—Magistrate not bound to take cognizance of an offence on a petition of a complaint—without taking cognizance he may as well proceed under section 156 (3) for investigation. (1958) 10 DLR 412.

 

Ss. 156(3), 190, 200, 204Narazi. petition by a complainant—Magistrate's power to initiate proceeding on his own accord. It is open to an informant to subniit a narazi .petition against a final report submitted by the ' 'police before the Magistrate who may ti? it such petition as a petition of complainant, take cognizance under section 190(I)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(I)(b) of the Code on the information contained in the police report, if in his opinion the facts staled therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points\undcr the powers conferred upon him under section 156(3) of the Code. Khorshcd Alam Vs. Stale (1975) 27 DLR 111.

 

S.158High Court ordered for retrial of the case—Therefore charges framed by the Magistrate on the basis of the witnesses' deposition to the earlier stage must give way to fresh charges to be framed after examining the witnesses afresh. Abul Mollah Vs. Alauddin Ahmed (1978) 30 DLR 175.

 

S.159 : Inquiry by Magistrate simultaneously with Police investigation—Not un-warranted. 8 PLD La/i. 448.

 

S.161Use of the statement made to the Police—Statement to the Police recorded under the section cannot be used by the prosecution to corroborate or explain the evidence of the witness in Court but the defence can use it for the purpose of contradicting the witness and testing his veracity and never for any other purpose. Sana Mia Vs. State (.1959)11 DLR 17 :1959 PLD Dae. 400.

 

—Statements of witnesses to the police u/s. 161 Cr.P.C. not at all admissible in law. Ansar All Vs. Slate (1983) 35 DLR 76.

 

—Statements made u/s.161—How far and to what extent can be used in a criminal trial. Ansar All Vs. State (1983) 35 DLR 76.

 

Boiled statement— Cross-exami­nation of P.Ws. by reference to it.

—To allow the defence to cross-examine witnesses with reference to their boiled statement recorded by a Police Officer is not only an illegality but also causes miscarriage of justice. (1953) 5 DLR 169.

 

—Previous statement of witness, when can be used as a substantive evidence—when a previous statement of witness is contradicted by his evidence in Court—its effect. A previous statement' of witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceedings, such as commitment proceedings and then put it at the trial under section 288 of the Code of Criminal Procedure.

 

A statement recorded by the Police under section 161 of the Code of Criminal Procedure cannot be utilised as substantive evidence. It can only be utilised under section 162 of the Code of Criminal Procedure to contradict such witness in the manner provided by section 145 -of the Evidence Act.

 

When a witness is so contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Nazir Hossain Vs. Md. Shaft (1965) 17 DLR (SC) 40.

 

Ss. 161 and 162 : Failure to supply approver's statement—Accused Preju­diced—Approver's statement recorded under section 161 was not supplied to the defence lawyer when he asked for it in the trial court. Accused was convicted on approver's and circumstantial evidence. In the Court of Appeal, the Court offered the statement of the approver recorded under section 161 but the accused's lawyer refused; the Court, however, assured that the contradictions would be treated as unexplained.

 

This course is not sufficient to amend the prejudice caused to the accused—The right course was either to send the case for retrial or call the approver to have him cross-examined on his statement recorded under section 161. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42; 1960 PLD (SC)

 

S, 161—Propriety of maintaining the original statement under section 161. It is improper on the part of the prosecution to remove the original statement of the defence witness recorded under section 161 of the Code and replace it with one which is said to be a copy of the original one. Abdul Kuddus Akanda Vs. The State (1970) 22 DLR 195.

 

Statements recorded by police under section 161 cannot be used as substantive evidence—Use of such statements as substantive evcdencc causes failure of justice—Such statement can only be used for contradicting prosecution witnesses in the manner provided by section 145 of the Evidence Act. Prya Bala Das Vs. Ata (1970) 22 DLR 582.

 

—Statement recorded by Police under section 161—Court to consider such record only with a view to weighing the evidence actually adduced in court. Prya Bala Das Vs. Ata, (1970) 22 DLR 582.

 

Statement recorded by Police under section 161 Cr.P.C.—Where such record becomes suspect or unreliable much weight should not be given to such statement or alleged omission by prosecution witnesses—Court should exercise its discretion judicially, if in such circumstances direct evidence of witnesses should be disbelieved. Pry a Bala Das Vs. Ata (1970) 22 DLR 582.

 

— S- 16KThe statement recorded under section 161 is no evidence in a trial. Ekabbar AH Vs. The State (1970) 22 DLR 620.

 

—An omission of a fact from the statement is only of value, if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The practice of proving such omission of statements is generally to be discouraged. Ekabbar All Vs. The State (1970) 22 DLR 620.

 

—Statement under the section— Purpose for which it may be used.

Statement under section 161 is not at all evidence. The only purpose of such statement is" to contradict the prosecution witness and that also can be done only after the statement has been duly proved and the provisions of section 145 of Evidence Act has been duly complied with. Abdul Hashem Vs. State (1968) 20 DLR 834.

 

—Accused's right  to get statements.

Accused has the right to get copies of the statements of witnesses recorded by an investigating office? under section 161 and examine them for himself to find out whether there are contradictions. It is not impossible that the defence might be able to abstract from the condensed or boiled statement portions which could be attributed to one or the other of the witness whom it intends to contradict by such statements. Sarafat Vs. Crown (1952) 4 DLR204.

 

—A boiled statement is really a digest or an abstract of the statement of a number of witnesses. Sarafat Vs. Crownr(1952) 4 DLR 204.

 

3ecs. 161 and 162 : Recording of witnesses, statement in a boiled down form is

irregular, but unless it causes prejudice to the accused, the trial stands. Md. IsrafilVs. State (1957) 9 DLR 92.

 

—Statements of witnesses recorded under Sec. 161 cannot be withheld from defence on the plea that they were recorded in a boiled down form. (1953) 5 DLR 313 and also see. (1957) 9 DLR (WP) 1.

 

—Record of joint statement of several persons—withholding the same prejudices the defence.

 

—Statement made to a police-officer under Sec. 161 is inadmissible in evidence and cannot be brought on record,53 CWN (DR. 1) 66.

 

—To allow the defence to cross-examine witnesses with reference to their    boiled   down   statement recorded by a police-officer is not only an illegality but also causes miscarriage of justice. A.F.M. Abdul Jalil Vs. A.Sabur (1953) 5 DLR 169.

 

S. 162 : Contradiction brought out by defence of a tendered witness—section applicable. Defence by cross-examination brought out certain contradictions in. the evidence of a prosecution witness tendered by prosecution from what he stated to the investigating officer as recorded under section 161. The defence wanted to confront him with what he said before the Investigating Officer but the Sessions Judge disallowed it on the ground that the witness was a tendered witness.

 

Held : Even though the evidence consisted merely of statements in cross-examination, the defence is entitled to use the statement of the witness taken under section 16T in order to contradict the evidence of the said witnesses elicited in cross-examination. State Vs. Nowab Alt (1961) 13 DLR 646 :1963 PLD (Dae) 61.

 

—Investigating Officer as a defence witness—cannot be cross-examined by the prosecution. The prosecution having failed to examine the Investigating Officer as a witness for the prosecution the defence examined him as a defence witness and the Investigating Officer in his examination-in-chief made certain statements in favour of the defence whereupon the prosecution cross-examined him.

Held : The Sessions Judge ought not to have allowed the prosecution to cross-examine the Investigating Officer.

 

No statement made by any person to the Police Officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that, too, at the instance of the accused. Anis Mondal Vs. State (1958) 10 DLR 459.                     

 

—The prosecution has no right whatsoever to prove the statement of the witness made to the Police Officer or the witness. Defence only has the right to cross-examine the Investigating Officer. Anis Mondal Vs. State. (1958) 10 DLR 459.

 

—Police diary—Use by the Court when Investigating Officer is cross-examined. Negative answers by the Investigating Officer—Public Prosecutor's duty in clearing up matter. It is desirable that when an Investigating Officer is being cross-examined as to previous statements made to him by the witness for the prosecution, the Court should have the Police diary before it and see whether the negative answer of the officer really gives a picture of what the witness, in fact had stated. If not, the fact should be borne in mind and the Court should watch whether the matter is cleared up in re-examination. It is the duty of the Public Prosecutor to see that the negative answer from an Investigating Officer in respect of the statements of a witness does not create a wrong impression of what the witness stated before the Police. He must in these cases bring about other statements to explain the matter referred to in cross-examination. If the Public Prosecutor fails to do so, it-is the duty of the Court in fairness to the cases, and the witness, to bring about facts which will clear up the negative answer. This will be legitimate use of the Police diary and one of the modes of taking aid from it in the trial. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Where the Investigating Officer was not examined by the Prosecution but was examined by defence, section 162 stood as a bar against the prosecution for cross-examining him as regards the statement made by the witness to the Investigating Officer. Anis Mondal Vs. State (1958) 10 DLR 459.

 

— Witness must be called for the prosecution. The requirement of section 162 is that the witness must be called for the Prosecution. State Vs. Nawab AH Biswas (1961) 13 DLR 646.

 

—Statements to the Investigating Officer cannot be used to collaborate Prosecution witnesses. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Effect of inadmissible evidence placed before the jury-verdict of guilty, unsafe to rely on. Investigating Officer, examined as a defence witness, made some statements in favour, of the defence. Prosecution thereupon cross-examined the Investigating Officer which the Sessions Judge allowed, but, in his charge to. the jury, he told the latter that the evidence of the Investigating Officer in cross-examination by the prosecution was inadmissible in law and asked them, not to be influenced by the same.

 

Held : It must be remembered that the jury are laymen and when this evidence had been placed before them it would be impossible for them to shake off the effect of those evidence in spite of the warning given by the learned Judge. The trial has certainly been vitiated by violating the provisions of section 162 Criminal Procedure Code and that jury might have been misled by those inadmissible evidence. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Whether a statement recorded by the police is an F.I.R. or a statement made in the course of Investigation is a question of fact. Md. Siddique Vs. Crown 6 DLR (FC) 56.

 

—Investigating Officer cannot be asked as to what a witness said to him.

The trial Judge is not permitted to ask the Investigating Officer as to the contents of an oral statements made to him by. a certain witness after the F.I.R. was recorded. Such a statement must be eliminated from the recofd. All Haider Vs. Stale (1958) 10 DLR SC 193.

 

—Dying declaration — Dying declaration made in the course of Police Investigation — admissible. Shahidulla Khan Vs. Slate (1960) 12 ®LR 537: (1961 )PLD (Dae.) 1.

 

—Where a chowkider arrived at the thana and reported the occurrence to an S.I. of Police who did notrccord the statement of the chowkider in writing but recorded the statement of another person, who arrived at the thana later on, as the first information report.

 

Held that the information given by the chowkider was the first information report in the case and the Sessions Judge was wrong in allowing [he latter statement to go to the jury. Jamshed All Vs. Crown (1953) 5 DLR 369.

 

—Omission to supply to accused at trial copies -of statements of witnesses recorded in Police investigation— copies supplied at the hearing of appeal. Where no copy of the approver's statement taken by the Police during investigation was supplied to the accused at (he trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an inference of prejudice. But this inference is not irrcbuttable and where a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused are unable even to suggest thit cross-examination of the witness as to ah alleged omission or contradiction might have led to a break down to the witness or a material part of his testimony, the Court cannot set aside the conviction^ inasmuch as the matter is governed by section 537 of the Code. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42 = (1960) PLD.

 

—Defence lawyer entitled to get copies recorded under section 162. Lawyer permitted to defend an accused is entitled to have access to the record and be supplied with copies as provided under section 162 Criminal Procedure Code. State Vs. Ain Khan (1961) 13 DLR 911.

 

—An omission from the record in case diary of a statement does not amount to contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police-officer would have certainly recorded it, had it been there. Tera Meah Vs. Crown (1955)7 DLR 539.

 

—Omission of statements from the diary recorded—Practice of proving such omission, not approved : The practice of proving omissions of statements (in the police diary) are generally to be discouraged and without it being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary, it is difficult to say that it is a contradiction of a previous statement and much more so in the case of a statement not reco'rdcd in the dia/y. Tera Meah Vs. Crown (f955)7DLR539.

 

—Statement to the police : Prosecution witnesses were questioned by the defence whether they made certain statements to the police in the course of investigation and upon their saying that they did, the Investigating Officer was there-after asked as to whether particular witnesses has made particular statements to him. The latter said that in some cases a particular witness had not stated and in some cases in his diary it was not noted as such.

 

Held : The statements referred to above are not statements coming within the purvtew of section 161, and, therefore, they cannot be proved under section 162 to hold that contradictions have been established. Tera Meah Vs. Crown (1955)7 DLR 539.

—Making one part of a continuous statement before and the other part during investigation by police officer—Former not be covered by section 162 and the latter hit by section 162 Cr.P.G. Mir Muhammad Vs. The Slate (1969) 21 DLR (WP) 217.

 

—F.I.R. recorded at the place of occurrence after preliminary investigation—Inadmissible in evidence. Ali Sher Vs. State (1966) 18 DLR (WP) 112.

 

—The mode of contradicting a previous statement as provided in sections 145 and 153(3) of the Evidence Act has nothing to do with the mode prescribed in section 162, Cr.P.C. The credit of a witness may be impeached by proving his former statement inconsistent with any part of his evidence which is liable to be contradicted. Altaf Molla Vs. Crown (1954) 6 DLR 420.

 

—Previous statements recorded under section 161, Cr.P.C. cannot be proved by the Investigating Officer before the witnesses had actually taken their stand in the witness box. State Vs. Go lam Mostafa (1949) 1 DLR 71 (at page 77, left- hand column).

 

—Information previous to first information whereupon police action other than investigation into cognizable offence started, is admissible in evidence.

 

—When a witness has given details of the commission of the crime and of the persons engaged in- committing it, the act of the Police-Officer m subsequently asking the witnesses to point out those persons from a test identification parade cannot be objected to and the evidence of the result of such a test may be rightly given under sec. 9 of the Evidence Act in proof of the identity of the accused without contravening the provisions of Sec. 162 Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (atp.136. left hand col).

 

—Identification parade : Held before police—Evidence as to, inadmissible. 5 PLD (Sind) 279.

 

—Test identification : Act of identifying in a test identification parade is not a statement hit by section 162 and is admissible in evidence. Bashir Harm Vs. State, 1 DLR (SC) 21.

 

—Identification of articles before an identifying police-officer is hit by Sec. 162. Evidence of such identification is of no value'. Mir AmirHossain Vs. Crown. (1954) 6 DLR 518.\

 

—List of stolen property given to the police in the course of investigation—Inadmissible and must be excluded from consideration. Md. Yakub Vs. Crown (1955) 7 DLR (WP) 36.

 

— Admissibility   of   evidence   of  the  | pointing   out   by   approver   of  the  place where   some   incidents   took   place.   The relevant point was whether the pointing out of the place by the approver to the police-officer in the course of investigation where the offence was alleged to have been committed was hit by section 162.

 

Held : In such a case the provisions of the section are not contravened because what was used at the trial was not a statement made to the police but merely the fact that the witness demonstrated to the police his knowledge of certain localities. Ibrahim BhakVs. Crown (1955) 7 DLR (FC) 123 (133).

 

  What    does    not    amount    to   a statement to the police.    Where what is at issue at the trial is not a statement to the police by a witness but merely the fact that the witness demonstrated to the police his knowledge of certain localities where some incidents are alleged or proved to have taken place, Sec. 162 of the Code is not contravened by the admission of such evidence. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) W (136).

 

—Statement in the course of investigation. Although in examination-in-chief the prosecution witness stated that he had mentioned the fact of his recognition to the Sub-Inspector of Police but in cross-examination he said that he mentioned the names of the accused persons to the Sub-Inspector of Police.

 

Held : This statement is hit by sec. 162, and should never have been allowed to go on record. Syed Ahmed Vs. Crown (1950) 2 DLR 244.

 

—Steps in " furtherance of investigation : In the context in which the word occurs, investigation must refer to the investigation of the specific allegation of crime already reported and the sections can apply only to those statements which are steps in furtherance of the pending investigation. Shahamad Vs. State (1956) 8 DLR (SC) 124.

 

—The mere fact that a statement was made during investigation is not by itself sufficient to bring it under section 162. The question whether a statement was in the course of an investigation or not is a question of fact to be decided on the  circumstances of each case. Shahamad Vs. State (1956) 8 DLR (SC) 124.

 

—F.I.R. after the police investigation had ; started, being a statement of a person before the police, was not admissible in evidence. Golam Qadir Vs. Crown 2 P.C.R. 17;2 PLD (Lah.) 366.

 

—Statements    to    custom    officers    :

Customs officials are not police-officers and statements made to them arc not covered by section 162. Ayoob Vs. Crown 2 PCR 60.

 

—Statement made by an accused before a police-officer during investigation—inadmissible. 2 PLD (Lah.) 364.

 

—Prosecution witness called in defence does not cease to be a witness called for the prosecution—Copy of such a witness's statement before the police should be supplied to the defence. In case of refusal of copy of such statement on what the witness was sought to be contradicted, his evidence should be kept out of consideration. 1954 PLD (Lah.) 210.

 

—A police officer while he is investigating the truth or otherwise of an information received he is certainly carrying on an investigation under Chapter XIV of the Cr.P.C. and any statement made by persons examined by him will be hit by sec. 162 of  CrP.C. JamshedAli Vs. Crown (1953) 5 DLR 369.

 

—The summary trial should of course be speedy, but it does not dispense with the legal provisions for engaging a lawyer by the accused. As the record shows the accused hardly got any opportunity to be defended by a lawyer. It was contended on behalf of the State that the defence did not suggest any case of placing of the gun in their ring-well. It must be considered that the accused were hardly given any opportunity to arrange their legal defence. In between the dates of their arrest and trial only 3 days elapsed. It is not understood why their trial was held in such a haste. Pair Baksha Vs. Stale (1975) 27 DLR 251.

 

—Statements made u/s. 162—How far and to what extent can be used in a criminal trial. We are concerned, at the moment, with the first proviso to section 162 Cr.P.C. It is clear from the aforequoted first proviso :

(I) That statements made to the Investigation Officer cannot be used by the prosecution to corroborate or contradict the statements of its own witness, It is true that section 157 of the Evidence Act provides that in order to corroborate testimony of a witness any former statement made by such witness relating to the same fact is admissible in evidence, but this general rule is controlled by the first proviso to section 162 Cr.P.C. Ansar AH Vs. State (1983) 35 DLR 303.

 

Sections- 162 & 164Statements made by accused to Magistrate holding "trap"—admissible at a trial—Such statement not hit by sees. 162 or 164. 9PLD(Lah.)25i.

 

—Ss. 162 and 164—For guidance in recording confession or statement under S.I64 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any confession. State Vs. Lalu Mia (1987) 39 DLR (AD) 117

 

—S. 164— A statement made under section 164 can never be used as substantive evidence of the facts stated, but it can be used to support or challenge the evidence given in Court by the person who made the statement. (1950) 2 DLR (PC) 39.

 

—Statements under section 164 come under section 24 of the Evidence Act and are, therefore, excluded from evidence. (1956) 8 DLR (FC) 1.

 

—The word "statement" in section 339(2) Criminal Procedure Code, refers to either the statement of the approver before the committing Magistrate or his statement at the trial, or to both. They do not include statements under section 164 made by the approver in the course of the investigation. (7956; 8 DLR (F.C.) 1.

 

—Statement made under section 164, Cr.P.C. is relevant against the maker thereof when they are recorded in compliance with the provisions of section 364 Cr.P.C. (1956) 8 DLR (F.C.) 1.

 

Recording Magistrate not called as a witness-—Confession admitted in evidence without being proved by the Magistrate who recorded it— Circumstances to put the confession in evidence under section 33, Evidence Act, not proved.

 

Held : The confession is not admissible. (1951) 3 DLR 383.

 

—The provisions of section J64 do not in any way affect the admissibility of a statement made by a person, if it falls within section 32 of the Evidence Act. (1951) 3 DLR (FC) 388.

 

—The word "statement" in section 164(1) includes statements of witnesses or deceased persons and must conform to the provisions of Chap. XXV, Cr.P.C., if it is intended to be used as statements made during investigation under Chap. XIV of the Code. (1951) 3 DLR (F.C,) 388.

 

_—Section 24 of the Evidence Act applies to statements made by an approver under section 164 and operates to exclude such statements from evidence. (1955) 7 DLR (FC) 123 (129).

 

—A confession which may be true but not voluntary is not admissible in evidence at all. (1955) 7DLR 633 (636)(rt.hand col.).

 

—The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of his inability.(1951) 3 DLR (WPC) 505.

 

—Confession recorded in narrative form and not in questions and answers— Confessions under section 164 taken down in a narrative form do not render them inadmissible in evidence 'on the plea that they ought to have been recorded in the form of questions and answers.(1951) 3 DLR (WPC) 505.

 

—A statement under section 164 cannot be used as substantive evidence; it can be used in cross-examining the maker thereof only to show that it was false. (1956) 8 DLR 404 (407).

 

—A statement under section 164 can properly •be used to enable the jury to decide whether the evidence put in under section 288, Cr.P.C. or the evidence in the sections is to be preferred. (1956)8 DLR 404.

 

—Previous statements made under section 164 can be used for the purpose of corroborating or contradicting the subsequent statements made in the committing Court or.in'the Court of Session. (1954) 6 DLR (WPC) 188.

 

Value of statementA person whose statement is recorded is more or less wedded lo the same. Deposition ef a witness whose statement was recorded under section 164 cannot be doubted simply on the ground that section 164 was resorted lo, (1954) 6 DLR (WPC) 213.

 

—Confession    while    the    accused  in I custody—Accused during the period between his' arrest and his confession remaining in Police I custody for a fortnight.—Confession inadmissible. Haji Year Muhammad Vs. Rahim Dino (1961) U DLR (WP) 58 : (1960) PLD (Kar.) 769.

 

—Section 25 of the Evidence Act has nothing to do with the confession of an approver recorded > under section 164 before a pardon is tendered to him, ' because the confession is not the statement of a | person who is being tried as an accused when the confession is tendered in evidence. (7955) 7 DLR \ (FC) 123 (129).

 

_—Confession   by   an   accused  before I the     commencement     of    investigation, | Confession by an accused before the commencement oT investigation is admissible in evidence though, such confession does not fall within the provisions of section 164 and though the prescribed formalities are not observed. Abul Hossain Vs. State (I960) 12 DLR 110;( 1960) PLD 438.

 

—If no pardon has been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to the restrictions of that section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness the former being without and the latter being on oath. (1955) 7 DLR (FC) 123/129.

 

—Satisfaction of the Magistrate that the confession was voluntary.—Putting only of questions prescribed in the printed form—not enough. (1955) 7 DLR (WPC) 45 (53).

 

—Magistrate who recorded the statement of witness which is not a substantive evidence and can only be used for corroborating or contradicting may not be called as a witness to prove the statement. Anwar Hossain Vs. Prov. ofE.Pak. (I960) 12 DLR 615.

 

—In order to ensure the voluntariness of a confession, the questioning of the accused before he makes the cbnfcssion forms an essential factor. The Magistrate must question the accused in pursuance of a real endeavour to find out the object of it.

When there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole. (19J7) 9 DLR 46.

 

— In course of the investigation' means investigation which is in progress and a statement under this section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. (1953) 5 PLD (Lah.) 495.

 

—After the recording of confession the accused person should be sent to the judicial custody and not to the police custody. Wazir Vs. State (1961) 13 DLR WP 5: (1960) PLD (Kar.) 674.

 

—A statement recorded by an incompetent Magistrate is admissible. 5 PLD (Lahore) 495.

 

—When a person is made an approver, his statement has clearly resulted from an inducement but, when such a person is a witness, section 24 of, the Evidence Act can have no application, as his statement is not being used as a confession but as a piece of evidence against persons other than himself. Nor would such a statement be inadmissible on the ground that it was not recorded in terms of section 164(3), Crf.C. (1955) 7 PLD (Lah.) 375.

 

—Statements made under section 164 is relevant against the maker (accused) thereof when they are recorded in compliance with the provisions of section 364. (7950; 2 PLD (Lah.) 364.

 

Non-compliance   with   the   provision

Where the Magistrate recording the confession had failed to follow the requirements of law as set out in sections 164 and 364,Cr.P.C. but had subsequently  ' been examined as a witness under the provisions of section 533, Cr.P.C.

 

Held : The evidence of the Magistrate cured the irregularities and that the confession was not inadmissible in evidence. 2 PLD (Bal.) 1.

 

Admissibility—Confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. 2 PLD (Lah.) 68.

 

—Confession before Magistrate—No

formalities of law observed-—confession is not admissible in evidence. 2 PLD (B.J.) S.

 

—Warning to the confessing accused-Warning to the confessing accused must be given before commencing the recording of the confession. Magistrate must be satisfied that confession is voluntary and record of the confession must indicate that the confession was voluntary. Said Begum Vs. State (1959) 11 DLR (WP) 22 : (1958) PLD (Lah.) 559.

 

—It is not necessary that warning to the confessing accused should be given "immediately" before recording the confession. —Warning need be given afresh when continuity of recording the confession is broken. (AIR 1946 Pat. 169; AIR.

 

7925 Cal. 587 and AIR 1954 Bom. 285 distinguished. AIR 1933 Mad. 74 and AIR 1930 Sind305 refJSheru Vs. State (1959) 11 DLR (WP) 28.

—Confessional statement, oral as well as in writing made by the accused before a Magistrate to whom the accused came voluntarily and who was then put under arrest—Magistrate's evidence to prove accused's confession.

Held : The. accused's statement admitted into evidence in the present case, though of a confessional nature was not hit by the rule laid down by the Judicial Committee in the case otNazir Ahmed Vs. King Emperor. The Magistrate concerned was empowered under section 190(l)(c) of the Criminal Procedure Code to act upon the information furnished and, as such, the information upon which he acted was admissible. Apart from this it cannot be said that the rule laid down in the above mentioned case excludes all confessional statements or admissions. Faqira Vs. State (1966) 18 DLR (SC) 283.

 

—Confession, its test : A statement is confession, if it be of such a nature that it alone can be the basis of conviction—A statement containing self-exculpatory matter is never a confession—The accused in their statements admitted their presence at the murder but did not directly admit their guilt in terms of the offence.

 

Held : Such judicial statements cannot be treated as confessional statements. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

Judicial statement : Incriminating portions of the judicial statement were corroborated by other evidence on record—Admission of presence by the accused persons on the scene of murder—The very admission of presence on the scene indicates that the accused had complicity in the crime and the murder took place in furtherance of their common intention. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

—Confession, its meaning : Confession means admission of the guilty in terms of the offence—Confession must either admit in terms the offence or at any rate substantially all the facts which  constitute  the offence.  The State Vs. Badiuzzaman, (1973) 25 DLR 41.

 

—Judicial confession : Magistrate recording confessional statement did not tell the accused that he would not be sent back to police custody—Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge—Held : Judicial confession, under the circumstances, was voluntary and true. State Vs. Lulfor Fakir, (1972) 24 DLR 217.

 

—No statutory obligation that the confessing accused shall be given 3 hours;time to reflect before his confession is taken down. Hari Pad Debnath Vs. Slate, (1967) 19 DLR, (Dae.) 573.

 

—In a trap case confession of the accused before a Magistrate supervising the trap is a judicial confession and such confession must be recorded under sections 164 and 364—failure of which renders it inadmissible. Gulam Abbas Vs. The State, (1968) 20 DLR (WP) 48.

 

—Confessional statement may be accepted if it is made after long detention in the police custody and even if some formalities of confessional statements found are omitted. Confessing prisoner in police custody for more than 24 hours-Confession admissible unless other vitiating elements are present. Niab Ali Vs. The State, (1969) 21 DLR 122.

 

—Investigation about the offence of receipt of bribe money does not commence when the demand for bribe was made—Statement by an accused person in a trap case under the Anti-Corruption Act to a Magistrate or a Police Officer is admissible in evidence and not being one in the course of investigation is not as such hit by section 164 or section 364, Cr.P. Code.

 

Provision of Pakistan Special Police Establishment Ordinance (VIII of 1948) and that of West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) are inconsistent with what has been provided in Chapter XIV, Cr.P. Code regarding information to the Police and the matter of investigation and to* the extent of inconsistency, the former prevails over the Chapter XIV of the Cr.P. Code.

Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by,the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.

 

—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.

 

—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.

If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs; The State (1968) 20 DLR(WP)48.

 

—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose. This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (1969) 20 DLR 526.

 

—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled.

 

When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by obs'erving all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran All Vs. State (198$) 37 DLR 1.

 

—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The Slate (1983) 35 DLR 119.

 

—Statement recorded B/s.464 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/ss.l45 and 155 of the Evidence Act or for the purpose of corroborating former prevails over the Chapter XIV of the Ct.P. Code.

 

Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.

 

—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.

 

—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.

If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs. The State (1968) 20 DLR(WP)4

 

—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose.

 

This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (196&) 20 DLR 526.

 

—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by observing all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran AH Vs. State (1985) 37 DLR 1.

 

—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.

 

—Statement recorded 8^8.164 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/se.145 and 155 of the Evidence Act or for the purpose of corroborating him u/s. 157 of the Evidence Act. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.

 

1850

Constitution of Pakistan, 1962 -10

Citation: (1962) 14 £)L% (SO 251 : (J962) PLD (SC) 480, (1970) 22 DLR 455, (1968) 20 DLR 1084, (1973) 25 DLR 471,(1974) 26 DLR 32, (1962) 14 DLR (SC) 25, (1962) 14 DLR (SC) 251, (1962) 14 DLR (SC) 251 : (1962) PLD (SC) 480, (1968) 20 DLR 1217, (1968) 20 DLR 8

Subject: Constitution of Pakistan

Delivery Date: 2018-09-05

Ss. 209 & 210 : Limited character of the function of the committing Magistrate inquiring into an offence triable by Sessions CourtCommitting Magistrate just to sec that a prima facie case has been made out and not to overstep the limit—"Reasonable doubt", where the parties are not in issue on points of facts or law—Cornmiting Court not to usurp the function of proper trail.

 

—Right of private defence of life and property—Decision on such question lies with the superior Court.

 

Mozharul Hug Vs. Ishaque Sardar (1962) 14 £)L% (SO 251 : (J962) PLD (SC) 480.

 

—A cqprt becomes functus-officio only when the ordpr of discharge is made on merits after application of mind to the materials available on record.

 

RosmaternessQ Vs. Shah Murtaza All, (1970) 22 DLR 455.

 

—Section explained : Section 209 Cr.P.Code clparly indicates that the learned Magistrate hfls the power to weigh the evidence. Firstly, Magistrate has been given power of examining accused person with regard to the evidence adduced against him, for the purpose of seeing whether the allegations made against him by the prosecution were false or explainable by the accused.

 

Secondly, if the Magistrate does not find sufficient ground for committing the accused person for trial hp shaJJ discharge him. The word "shall" is not to be construed in the mandatory sense. The Magistrate njust sift the evidence to come to the conclusion regarding sufficiency of the grounds for commitment. Major Vs. Tufan Mia, (1968) 20 DLR 1084.

 

—A discharge order is not a legal bar to a fresh prosecution, The accused was discharged on the. basis of the final report submitted by the Police. The S.D.M. accepted the final report and discharged the accused. That order of discharge was made on the bqsjs of .final report sent by the police and not an evidence in thp case. The order having not been passed on merits, a fresh prosecution is competent against the accused, and no grievance can be made on that score. The order of discharge does not finally exonerate the accused from a criminal liability. A discharge order is not a legal bar to the fresh prosecution.

 

Akhtar Hossain Mollah Vs. Abdur Rashid Mollah, (1973) 25 DLR 471.

 

—After the Magistrate has taken cognizance of a warrant case on complaint by a private party and non-bailable warrant has been issued the complainant has no locus standi to withdraw the case, and Magistrate acts illegally when he discharges the accused on a withdrawal petition filed by the complainant.

 

Abdul Hakim Molla Vs. Lutfur Rahman Khan (1974) 26 DLR 32.

 

Ss. 209 & 210Where there are questions of fact or of law Upon which the prosecution and the defence are at issue, the decision upon such issues can only be reached by the Sessions Court as for example, as to the place of the occurrence, as to the possession in respect of that place, as to who were the trespassers and aggressors and as to the exercise of the right of the private defence.

 

Mozaharul lluq Vs. Ishaque Sardar (1962) 14 DLR (SC) 25.

 

-—Concept   of   a   "reasonable   doubt"

operating in favour of an accused person only begins to apply at a stage when the full evidence on both sides has been placed on record, and such evidence being considered as a whole, the Court is still left in a stage of doubt as to what the answer should be, such doubt being a "reasonable doubt."

 

Mozaharul lluq Vs. Ishaque Sardar (1962) 14 DLR (SC) 251.

 

—The existence of two opposite versions on any point of facts by itself a sufficient ground for the Magistrate to commit the case for decision to a competent Court. Where the prosecution evidence fails altogether to make out a prima facie case, there, of course, the Magistrate would discharge the accused.

 

 

Mozaharul Huq Vs. Ishaque Sardar (1962) 14 DLR (SC) 251.

 

—It is a grave error to assume that if the defence on any question of fact, sets up a different version, the effect of such a defence is to annul even the prima facie case, on the ground of "reasonable doubt".

 

Mozaharul Huq Vs. Ishaque Sardar (7962) 14 DLR (S.C.) 251.

 

—A Court falls into a serious error when it accepts and allows in favour of the accused persons a right of private defence of life and property in a case wherc(a) the plea of private defence had never been formally raised by the accused person, and (b) the stage at which such a pica could be raised, namely, when a charge of the major offence had been brought against them, had not yet been raised.

 

Mozaharul Huq Vs. Ishaque Sardar (1962) 14 DLR (SC) 251 : (1962) PLD (SC) 480.

 

—In the present case, the Courts below have given to the accused persons the benefit of a belief that certain of them had received injuries without those injuries being proved, merely on the basis of medical certificates placed before them. These errors are sad indications of the superficial and irresponsible manner in which important questions arising in cases of serious crimes arc being treated by the Criminal Court.

 

The function of examining a plea of private defence raised against a charge of a particular crime, can only be tried and adjudicated upon by a Court which is competent to try that particular crime. It is a matter of grave concern to find that "patent and inexcusable error and excess of this kind have received only complacent approval from the two supcriorcourtsbefore which they were brought for correction.

 

Mozaharul lluq Vs. Ishaque Sardar (1962) 14 DLR (SC) 251 : (1962) PLD (SC) 480.

 

Jurisdiction of competent courts to try serious cases not to be obstructed—It is essential for the proper maintenance of the jurisdiction of Court that serious crimes should be brought to trial before a competent Court and that questions of fact arising therein should not be allowed to be decided by a Court holding preliminary inquiry (under Chapter XVIII, Cr.P.C.) whose only function is to satisfy itself that there is & prima facie case against the accused persons.

 

Mazaharul Huq Vs. Ishdque Sardar (1962) 14 DLR (SG) 251.

 

—Committing  Court  not  to  weigh  the evidence   but   to   see   whether   there   is   a prima facie case—It is not within the province of (he committing Magistrate to weigh the evidence led before him for the purpose of determining whether such evidence would lead to the conviction of the accused; his function being to sec whether a prima facie case has been made out against the accused and whether there is evidence to go to the jury.

 

State Vs. Korban Sardar (1961) 13 DLR 716', (1962) PLD (Dae) 221.

 

8.209(1)If the Magistrate decides not to commit the accused persons to the Court of Sessions for trial, he shall record some reasons in support of his order. The order must be a judicial order based on legal materials.

 

Azimuddin Khan Vs. Sabur All and others (1968) 20 DLR 1217,

 

8.209(2)Discharge order when not valid—Sub-section (2) of section 209 empowers the Magistrate to discharge the accused at any stage of the case, if, for reasons recorded by the Magistrate, he considers the charge to be groundless. Merc recording of reasons is not sufficient for an order of discharge. The High Court in revision will consider the soundness or otherwise of the reasons. The reasons stated by the Magistrate in the present case is based entirely on the fact that the complainant filing an application for withdrawal of the case, stated that witnesses would not be available to prove his allegations. This is no sound reason. Merc observations by the Magistrate that he believed that the charge is groundless without supporting the belief by reasons docs not justify an order of discharge of the accused under section 209(2) of the Criminal Procedure Code.

 

A.B.M.Enayet llossain Vs. The State, (1968) 20 DLR 816.

 

—Magistrate can discharge an accused only when he finds on some evidence that there was no case to commit the accused to the Sessions Court.

 

Abdul Hakim Molla Vs. Lutfur Rahman Khan (1974) 26 DLR 325.

 

—No discharge order valid unless the accused was placed before the Court . Moreover, the order of discharge could not be passed in respect of the accused who did not appear before the Court in obedience to,thc non-bailable warrants issued against them nor were they produced before the Court under arrest.

 

Abdul Hakim Molla Vs. Lutfur Rahman khan (1974) 26 DLR 325.

 

S.210The sections 210 and 497 Cr.P.C. can be reconciled by giving due regard to the order of commitment in arriving at the conclusion whether the conditions provide, in section 497 for granting bail are fulfilled in a given case or not.

 

Nadra Vs. Jamil Khan (1968) 20 DLR (SC) 246.

 

—The Enquiry Magistrate who records evidence and frames a charge against an accused person is, under section 210 of the Code not empowered to assess the merits of the prosecution case, his function being confined to the determination whether there is evidence which if believed will result in conviction. If so the accused will be charged and put on trial.

 

Muhammad Aslam Vs. Stale (1967) 19 DLR (SC) 445.

 

S. 211—After the framing of the charge, the Magistrate must under section 211(1) at once require the accused to give a list of his witnesses. Sub­section (2) of section 211 of the Code gives the Magistrate discretion to allow the accused to put in further list of witnesses at any later time, but this only serves to emphasize the mandatory nature of the duty imposed by sub-section(l), namely, to require the accused at once, after the charge has been framed, to give in a list of witnesses.

 

Moonda Vs. State (1959) 11 DLR (SC) 32 = (1958) PLD (SC) 275.

 

—Accused cannot ask the Court of Sessions to summon witnesses not included in his list of witnesses before the committing Magistrate. He can examine, however, witnesses, who arc present in Court.

 

Muhammad Sajjad and others Vs. Slate (1960) 12 DLR (WP) 55 = (1960) PLD (Lah.) 520.

 

—Main purpose of underlying section 211 is to obtain cancellation of the charge framed by Committing Magistrate—Sections 212 and 213 of the Criminal Procedure Code show that the main purpose of asking the accused under section 211 of the Code to forthwith furnish a list of defence witnesses is to obtain cancellation "of the charges framed by the Committing Magistrate by invoking

the discretionary power of the Magistrate to receive evidence for the accused under section 212 of the Criminal Procedure Code. Where accused took no step in his defence under section 208 and claimed to be tried—provisions of section 211 do not apply.

 

But in a case where the accused did not avail of the benefit of section 208 of the Code nor adduced any evidence subsequently on a date fixed for the purpose and ultimately on perusal of the charges claimed to be tried by the Court, the question of cancellation of the charges on taking a list of defence witnesses and examining some of them at the discretion of the Magistrate is immaterial.

 

The failure on the part of the Committing Magistrate to put such a question after framing of the charges is not so material as the accused is not prejudiced thereby.

 

Al-haj Abdur Rob Vs. Mobarakullah, (1968) 20 DLR 876.

 

—List of defence witness—Magistrate must ask the accused to give a list of defence witnesses after the framing of charge. Non-compliance vitiates the trial.

 

Alar All Vs. Reazuddin (1957) 9 DLR 69.

 

—When the accused filed a list of witnesses as provided in section 211 but the Magistrate does not apply his mind at all whether he should summon and examine any of the witnesses he commits an illegality. It must be clear from the record that the Magistrate has not applied his mind to this matter. The Magistrate, is, of course, not bound to examine any of the witnesses, so listed. Bui it is desirable to indicate some reason for not summoning any witnesses.

 

Shal Khan Vs. State (1959) 11 DLR (WP) 65.

 

—Omission to require the accused to file a list of witnesses—Does not vitiate trial provided the accused had adequate opportunity to defend himself.

 

Ibrahim & Others Vs. State (1959) 11 DLR (WP) 138 : (1959) PLD (Lah) 715.

 

8.211(1) : Omission to require the accused to file a list of defence witnesses vitiates the trial—After the framing of the charge, the committing Magistrate omitted to require the accused to file a list of defence witnesses.

 

Opportunity to adduce defence was, however, allowed to the appellants by the Judge in the Court of Sessions and the appellants, it appears, availed of that opportunity to a limited extent, by examining one of the prosecution witnesses as a defence witness when the examination of the appellant under section 342 of the Code was finished.

 

Held: Had they got notice of their right to cite and examine defence witnesses earlier, they would have taken steps to cite defence witnesses of their own choice is support of their defence and examine them. The case, thereupon, was remitted for retrial de novo.

 

Sana Mia Vs. State (1960) 12 DLR 814 : (1960) PLD (Dae) 396

 

S. 211(1)Magistrate's duty to require al once the list of the witnesses from the accused-Failure to do so will make the commitment liable to be quashed.

 

Shal Khan Vs. Slate (1959) 11 DLR (WP) 65 : (1959) PLD (Lah) 55 .

—Accused's failure to file a list of witnesses may be presumed from conduct—Magistrate is not bound in law to record the accused's failure to file the list but he should do it.

 

Shal Khan Vs. State (1959) 11 DLR (WP) 65 : (1959) PLD (Lah) 55.

 

Ss.  211   &   212—Compliance   with   the provisions of sections 211 and 212 mandatory Failure not curable by section 537. Slate  Vs. Korban Sarder

 

(1961) 13 DLR 716 : (1962) PLD (Dae) 22.

 

S.213Commitment order—reasons to be stated—Magistrate must record briefly the reasons for commitment when he makes an order of commitment. Failure of the Magistrate to give reasons for committal may amount to an illegality. Crown Vs. Misri (1955) 7 DLR (WPC) 16.

 

—Reading of an order of commitment—Mere reading out an order of commitment in the presence of the assessors by the Sessions Judge cannot be presumed as biasing the assessors against the accused. Rahmat Khan. Vs. Crown 1 PCR 38.

 

—Case triable both by Court of Session as well as by Magistrate. The Magistrate has the discretion to commit the case to Sessions Court and is not bound to try it himself,

 

l/anif Mohd. Vs. Crown (1956) 8 DLR (WPC) 21.

 

—Evidence on charges under sections 376 and 392 P.P.Codc was recorded against absconding accused persons under section 512, Criminal Procedure Code, i.e., in the absence of the accused themselves. Subsequently they were arrested after 8 years. After their arrest the Magistrate committed the accused to the Court of Session without attempting to procure attendance of prosecution witnesses and in his order of commitment he merely stated that such witnesses had "cither left the country or were untraccablc". In these circumstances the High Court quashed the commitment and directed fresh proceedings to be held according to law.

 

The Slate Vs. Alladad, (1968) 20 DLR (WP) 62.

 

—Orders of commitment by a Magistrate under Chapter XVIII or of Sessions Judge under section 437 to contain materials showing that they have applied their minds to the facts of the case. It is incumbent on a Court of Sessions to refer in its Order to the evidence which induced it to hold that the case was triable exclusively by a Court of Scssionswilh a view to enabling the High Court to be satisfied that the order of commitment was passed on proper consideration on record.

 

Md. Yakub All Vs. Slate, (1968) 20 DLR 881

 

S.215Insufficiency of evidence not a point of law to quash commitment—The Sessions Judge referred the case to the High Court under section 215 recommending the quashing of the order of commitment passed by the enquiring Magistrate on the ground that the order of commitment was not proper on the ground of insufficient evidence for such cdmmitmcnt.

 

Held : Insufficiency of evidence not being a question of law the High Court cannot interfere with the order of commitment.

 

Bahadur Khan Vs. State (1963) ]'5 DLR (WP) 67.

 

—Power to quash charges framed by the committing Magistrate rests only in the High Court. It- is not only illegal but also without jurisdiction for Sessions Judge to quash such charge.

 

Md. Nawaz Vs. State (1963) 15 DLR (WP) 84.

 

—Quashing of committal proceeding-Committal proceeding was hanging on for nearly 7 years for failure of prosecution to take steps to terminate it—High Court quashed it.

 

Crown Vs. Piru (1957) 9 DLR (WP) 7.

 

—Quashing of commitment is not regular, when there is evidence in support of the prosecution case.

 

Khera Vs. Crown (1957)9 DLR (WP) 9.

—Failure to refer to evidence by the committing Magistrate is an irregularity—High Court will go into the evidence,

 

Khera Vs. Crown (1957) 9 DLR (WP) 9.

 

—Quashing—effect of quashing means accused is discharged ipso facto.

 

Khera Vs. Crown (1957) 9 DLR (WP) 9.

 

—-When there is no evidence against the accused, no order should be made committing them to the Court of Sessions.

 

Haji Vs. Crown 4 PLD (BJ) 60.

 

S.220—Bail in non-bailable offence granted to accused by superior Court before commitment. Committal Court has no power to cancel bail under section 220. But bail granted by superior Court during committal proceeding would be treated withdrawn with the commitment of the accused.

 

If the bail granted to accused is only temporary one and ordered to subsist only till further evidence is brought on record or the stage of commitment of the accused is reached then the effect of such order would be only temporary one and the order would ipso facto stand withdrawn at the time of commitment of .accused. The power to grant bail to accused or remand him to custody would then be deemed to have been vested in the committal court under section 220 of the Code.

 

Shaukat All Vs. State, (1967) 19 DLR (WP) 39

 

Ss.221 & 222: Form of charge where a minor is taken away from the guardianship—Where a female under 16 years of age is kindappcd by the accused with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will, the charge must state from whose guardianship that female had been kidnapped.

 

Ear All Vs. State (1959) 11 DLR 242 : (1959) PLD (Dae) 750.

 

222(1) : Non-mention of particulars as to things—trial illegal—The trial Magistrate framed charge under section 457 of the Pakistan Penal Code in the following manner :

"That you, on about 15.9.52 at Dcbergati, P/S. Babuganj, committed house trespass at night in the dwelling hut of P.W.2."

 

The charge under section 380 P.P.Codc was framed as follows : "That you, on or about the same date and place committed theft in the dwelling hut of P.W.2."

Held : The charge is defective that it docs not state what articles were taken out of the possession of P.W.2.

 

Safluddin Vs. Crown (1953) 5 DLR 519

 

8.222(2) : Misappropriation of money and not goods—The case referred to in section 222(2) is a case in which the charge is criminal breach of trust or dishonest misappropriation of money and it docs not apply to a case of criminal breach of trust or dishonest misappropriation of goods, and affords no jurisdiction for mixing up money and goods.

 

Debendra Nath Vs. Crown (1950) 2 DLR 366

1851

Constitution of Pakistan, 1962 -11

Citation: (1950) 2 DLR 366, (1950) 2 DLR 349, (1973) 25 DLR 14., (1987) 39 DLR 184, (1961) 13 DLR 436, (1952) 4 DLR 80,(I960) 12 DLR 615, (1959) 11 DLR (SC) 84 : (1958) PLD (SC) 383, 7 DLR(WPC)24, (1951) 3 DLR 144, 8 PLD (Lah) 157, (1953) 5 DLR (FC)44(P.62R.hco

Subject: Constitution of Pakistan

Delivery Date: 2018-09-06

When a person is charged with criminal breach of trust of certain property entrusted to him, he cannot be convicted of embezzling, not the property, but the amount obtained by dealing with it.

 

Debendra Nalh Vs. Crown, (1950) 2 DLR 366.

 

—Charging in a lump for an aggregate sum—Charging in a lump for an aggregate sum is permissible under section 222(2) only in case of breach of trust or misappropriation of money but each item of omission to enter was found to be a separate offence and unless they were covered by section 235 Criminal Procedure Code they offended the provisions of sec. 233 Cr.P.C.

 

Sailendra Prasad Vs. Crown (1950) 2 DLR 349.

 

—222(2) : Provisions of sub-section (2) of section 222 which constitute an exception to the general rule regarding joinder of charges-explained. Provisions of sub-section (2) of Sec. 222 Cr.P.C. are exception to the general rule regarding joinder of charges and these provisions provide for a trial only in respect of criminal breach of trust or dishonest misappropriation of money of a gross sum in respect of which the offence is alleged to have been committed specifying only the dates between which the offence is alleged to have been committed.'

 

This cannot be extended to an offence of a criminal misconduct by a public servant.

 

Abdul Motaleb Vs. Slate, (1973) 25 DLR 14.

 

—Criminal breach of trust in respect of several items—charge is to limit the period of committing such offence to one year —If this provision of law not observed, the judgment must be set aside, such illegality not curable, u/s. 537, Criminal Procedure Code.

 

Mansur AH Vs.Slate, (1987) 39 DLR 184.

 

S.223Charge must give the proper details to the accused—Where the charges arc so defective that they do not give any notice to the accused as to the nature of the case which the proscculion sought to make against him, the trial held is illegal.

 

MA. Motalib Vs. State (1961) 13 DLR 436.

 

—In framing a charge for criminal breach of trust, the mode in which the offence is alleged to have been committed should be specified in the charge without which the accused is bound to feel difficulty in defending himself.

 

A. Salam Chowdhury Vs. Crown (1952) 4 DLR 80.

 

S.225Non-compliance with rules of procedure such as misjoindcr of charges, will not amount to an illegal exercise of jurisdiction.

 

Anwar Hussain Talukder Vs. Province of East Paic. (I960) 12 DLR 615              

 

—Charge—Omitting to state particulars of the offence—Death following injuries caused by accused^-Trial not vitiated—Where the circumstances showed that the accused could have been under no illusion as to the charge they had to defend themselves against, and at no stage during the trial any exception was taken to the charge, it could not be said that any prejudice is caused to the accused in their defence by the omission of certain words from the charge or that the said omission had occasioned in fact a failure of justice. The omission was curable under sections 225 and 537.

 

Hazrat Jamal Vs. State (1959) 11 DLR (SC) 84 : (1958) PLD (SC) 383.

 

—Date of offence stated as 6th May, 1951, or near about—Precise date of misappropriation not fixed—Charge not defective.

 

Alauddin V$. Ramzoo 7 DLR(WPC)24.

 

S.22TTrie test «o be applied as to whether an accused person charged under one section can be convicted under another section is whether he had notice of the offence of which he is to be convicted so that he was not prejudiced by the conviction.

 

Jaifar Vs. Idris Alt (1951) 3 DLR 144

 

—Court may alter a charge—Charge and conviction under sections 302/34, 307/34 and 397 P.P.C—Conviction changed to one under section 394 P.P.C. in appeal,

 

Fateh Sher Vs Crown 8 PLD (Lah) 157.

 

S.231:   Nature   pf   proceedings—The proceedings envisaged jn section 231 arc in the nature of a limited enquiry relevant to the new matter appearing in the a^dcd or altered charges, and such a limited enquiry may also have been conducted or directed under tfte powers derived from section 375 Cr.P,C.

 

Fazal Elafii Vs. Crown (1953) 5 DLR (FC)44(P.62R.hcol,).

 

S.231 : ResutttTtioning of witnesses after alteration of charge—The accused-petitioner was charged under section 161 P.P.Codc and section 5(2) of the Prevention of Corruption Act, 1947, under one head and subsequently, on the prayer of the prosecution, charge under section 5(2) of Act If of 1947 having been withdrawn, it amounted to alteration of charge within fhc meaning of section 231 and the accused is entitled to recall the prosecution witnesses even if the alteration did not affect his defenpe.

 

Nurul Mam Azizi Vs. Crown (1949) 1 DLR 14}.

 

S.233 : Offences separate—joint trial not proper—The accused were charged with inflicting fatal injuries on N on 13-4-52. Some of them were also charged for inflicting injuries on N and B on 12.4.52.

 

Held: The two incidents are independent of each other and are separate and unconnected, and, as such, they cannot be tried jointly.

 

Qader Dad Vs. Sultan Bibi (1956) 8 DLR (FC) 55 (58).

 

Charging in a lump for an aggregate sum—Section 233 provides that for every distinct offence of which a person is accused there shall be a separate charge. The only exception to this rule is the one provided in section 222, clause (2) but that exception does not apply to a charge of falsification of accounts because it applies in case of breach of trust or dishonest misappropriation of money.

 

Sailendra Prasad Vs. Crown (1950) 2 DLR 349 (356).

 

—Offences inseparably connected— Misjoinder of charges—-Where the offence of having been in possession of a spear which is punishable under the Arms Act is so connected with offences punishable under the Penal Code as to form part of the same transaction, it cannot be said that the trial was vitiated on account of misjoindcr of charges, and in such a case the accused could have been legally charged and tried at one trial for all the offences committed by him during the same transaction.

 

Sadiq Vs. Crown (1951) 3 DLR (FC) 381.

 

—Unless it could be shown that the mis-joinder of charges had in fact prejudiced the accused and occasioned a failure of justice an objection of the nature is not tenable. Prohibition against mis­joindcr of charges applies to summary trials as it docs to ordinary trials. The record must show that there was no rnis-joindcr of charges.

 

Sadiq Vs. Crown (1951) 3 DLR (FC) 381 .

 

—Offence of criminal misconduct under section 5 of Prevention of Corruption Act (II of 1947) and offences of specific instances of bribery under section 161 P.P.C. — Not of the same kind—trial for both illegal.

 

Crown Vs. Ghulam Mohammad 2 PLD (lah) 479.

 

—Accused, an ammunition dealer, charged under the Arms Act for making three false entries and for possessing 8 cartridges in excess—Accused prejudiced by mis-joinder of charges.

 

Ramesh Chandra Chowdhury Vs. Crown (1952) 4 DLR 97.

 

—Prohibition against misjoinder of charges applies to summary trials as it does to ordinary trials. The record must show that there was no misjoindcr of charges.

 

Abdul Ilanif Vs. Crown (1955) 7 DLR 274.

 

—Accused tried and sentenced in one trial for theft, forgery and attempting to cheat in respect of one document as well as for theft, forgery and cheating in respect of another—trial illegal.

 

Md. Hafeez Vs. Crown 4 PLD (Lah) 34.

 

—When the accused was charged under one head under section 409, P.P.C., in a lump for an aggregate sum defalcated by him consisting of 13 different items of value received for 13 demand drafts and also charged under section 477A under one head for falsification of accounts by omitting to cnler these receipts in the account books of the bank.

 

Held : There was a misjoindcr of charges vitiating the trial.

 

Sailendra Prasad Vs. Crown (1950) 2 DLR 349.

 

Ss. 233 & 234—Sec under section 239 (d) in case otNur-Din Vs. Crown 2 PCR 135 (149)

 

S. 233—Misjoindcr of charges—Misjoinder of charges vitiates the trial and not curable under section 537 Cr.P.Code.

 

Abdul Motaleb Vs. The Slate, (1973) 25 DLR 14

 

—Where there is ample evidence to show that petitioners were confederates and partners in their misdeeds a joint trial is permissible.

 

Sheikh Kaloo Vs. Slate, (1957) 9 DLR 253.

 

—Trial of 14 offences committed inthc course of different transactions by an accused was made the subject-matter of one single trial. Such trial was vitiated for non-compliance of the mandatory provisions of section 233 Cr.P.C. and cannot be justified by any of the exceptions mentioned there to—such defect cannot also be cured under section -S, 233-234.

 

537 Cr.P.C. Aminul Islam Vs. The State, (1972) 24 DLR 150 '

—Charge : There should be a separate charge for each distinct offence—The provision is mandatory-Causing the death of two persons are two distinct offences—framing of one charge for two specific offences of murder, even if committed in the same occurrence or same transaction, is defective and confusing.

 

The State Vs. Azahar Gazi (1971) 23 DLR 32.

 

—Conviction for abetment without the charge of abetment not always sustainable.

A charge of murder was framed under section 302 read with section 34 P.P.C. against four persons and the Court convicted all of them not on the substantive, of fence of murder but for abetment of murder though no charge was framed against them for abetting the commission of offence of npder. Held: When a person is charged with substantive offence he cannot in all cases be convicted for abetment thereof. Every case must depend upon its own facts and if the facts justify the conviction for .abetment though the person was charged with commission of offQnce itself, there is no bar in law to such conviction.

 

Abetment of an offence is not a minor offence of the substantive offence within the meaning of section 238 Cr.P.C. The substantive offence and its abetment are two distinct offences and each has got its ingredients. The ingredients that must be proved for the abetment of an offence are quite different from those required to establish the substantive offence. A charge for the substantive offence as such gives no intimation of a trial to be held for abetment,

 

famiza Khatoon Vs. State, (1972) 24 DLR 57.

 

—Defect in the frame of charge : Omission to frame two charges in accordance with the first part of section 233 Cr.P.C. is an irregularity curable under section 537 of the Code.

 

The Slate Vs. Abdul Aziz (1971) 23 DLR 91.

 

Ss. 233 to 239 : Ingredients of these sections examined and expoundedSections 233 to 239 deal with the joinder of charges and they must be read together and not in isolation.

 

Section 234 lays down three limitations. These arc, (1) that the offences must be of the same kind, (2) that they must have been committed within the space of one year, and (3) that more than three offences should not be joined in the same trial. Directions in regard to joinder of three charges stated under section 234 arc not mandatory in the sense that it is not obligatory on the Magistrate not to try the offences separately, but it is entirely at the discretion of the Magistrate whether or not to resort to section 234.

 

Each of the four sections namely, sections 234, 235, 236 and 239 can individually be relied upon as justifying a joinder of charges in matter of trials, but use cannot be made of two or more of these four sections together to justify a joinder. It is, therefore, not possible to combine the provisions of two or more sections, or the different sub-clauses of sections 239 in any one case, or to justify a trial of several persons partly by applying the provisions of one clause and partly by applying another clause or other clauses, and a joint trial is permissible only if it is permitted by any of the sections.

 

Slate Vs. Mirza Azam Beg (1964) 16 DLR (WP) 127.

 

—Several acts of misappropriation charged jointly against two accuseds, along with one additional act against one only of the accused without any evidence of conspiracy, abetment of sameness of transaction— Misjoinder of persons— trial vitiated . PLD (1957) (Lahore) 461.

 

1852

Constitution of Pakistan, 1962 -12

Citation: (1961) 13 DLR 846, (1960) 12 DLR 100 : (1960) PLD (Dae) 425, (1960) 12 DLR 408, (I960) 12 DLR 834 : (1961) PLD (Dae) 506, (1960) PLD (Dae) 412, (1954) 6 DLR (WP) 170, (1964) 16 DLR (Dae) 159, (1961) 13 DLR 213, (1968) 20 DLR 931, (1973)25 DLR 14, (196

Subject: Constitution of Pakistan

Delivery Date: 2018-09-09

S.234 : Misjoinder of charge is an illegality not curable under section 537

The accused was put on his trial to answer charges for misappropriation and falsification of accounts in respect of a sum of Rs.332/- regarding the purchase of tube-wells and misappropriation of another sum of Rs. 435/- showing a bogus payment in connection with the sinking of a lube-well and the third allegation was that the accused had accepted a donation of Rs. 200/- for sinking a tube-well in certain locality, but did not deposit the same in the fund of the Union Board. In respect of the charge of misappropriation as well as falsification of account of the first two items of Rs. 332/- and 435/- the accused was acquitted by the Special Judge; in respect of the item of Rs.2QQ/-for misappropriation and falsification of accounts he was convicted under sections 409 and 477A of the P.P.C. and sentenced to certain terms of imprisonment under both the sections. On appeal to the High Court, it was contended on behalf of the accused that trial has been vitiated for non-observance of the mandatory provisions of section 234 Cr.P.C.

 

Held : Misappropriation and falsification of account committed in respect of Rs. 332/- cannot be said to have been committed in the course of the same transaction so far as misappropriation and faHification of accounts in respect of Rs.435/- is concerned. Similarly misappropriation and falsification of account in respect of Rs.200/- cannot be said to have been committed in the course of the same transaction with the other two misappropriations and falsification of accounts. Therefore, the trial has been vitiated on account of the contravention of the provisions of section 234.

 

Abdul Awal Khan Vs. State (1961) 13 DLR 846.

 

—Offences under spction 161 of the Pakistan Penal Code, and under section 5 of the Prevention of Corruption Act are distinct and separate offences.

 

Ab'dus Salam Vs. Stale (1960) 12 DLR 100 : (1960) PLD (Dae) 425.

 

—Writ ofc.ertio.rari was issued and, conviction quashed when it was dear that the trial was held patently in violation of the provisions of section 234.

 

Mozammil All Vs. A.F.M. Majid (1960) 12 DLR 408.

 

—It was contended that each monthly delivery of the salary drawn by the accused constituted by itself a complete offence of cheating, and, as such, there could be no justification for lumping up fortyeight such offences in one charge and trying the same. Held: It could by no means be said that these acts of Cheating were done in the course of the same transaction. The charge as framed is certainly defective. Rut in so far as the petitioner has only been convicted of one offence of cheating and not fortyreight counts oPeheating, there is really no case of misjoinder of offences in this case.

 

Sayed Mpsaraf Hossain Vs. State (I960) 12 DLR 834 : (1961) PLD (Dae) 506.

 

—In respect of three offences of the same kind committed within twelve months, a charge under sec. 161 P.P.Codc was framed and separate charge for these offences was also framed against the same person under section 5(2) Prevention of Corruption Act, and the accused was on his trial to answer both the charges—Trial vitiated by mis-joinder of charges.

 

Arshed AH Khan Vs. State (1960) 12 DLR 90: (1960) PLD (Dae) 412.

 

—Offence of criminal breach of trust and forgery, and falsification of accounts to cover such breach—Not of same kind. 9 PLD (Lah) 290.

—A conviction under section 16i of P.P.C. on proof of ten instances of bribe-taking is illegal under section 234, but legal under section 5 of the Prevention of Corruption Act by virtue of section 5(2) of Cr.P.C.

 

Golam Mohd. Vs. Crown (1954) 6 DLR (WP) 170.

 

Ss. 234-236 : Misjoinder of charges-Charges under sections 409/461 P.C. in respect of some property,, and charges under sections 5(I)(d) of Act II. of .1947 in respect of some others illegal, vitiating the trial—The accused was charged under section 409 P.P.C. for criminal breach of trust in respect of certain items of property (clothings) and in respect of the same items of property was also charged under-sections 467/471 P.P. Code, for making false entries in the records and for falsely certifying of their being properly disposed of. The offence was alleged to have been committed on 7.1.55.

 

In the same trial he was further charged wilh the offence of criminal misconduct under section 5(I)(d) of Act II of 1947 for obtaining by corrupt and illegal means various other items of goods (C.I. sheets, ualjcr Oats etc.) out of those received by him between 17.10.54 and 6.6.55. Held : The appellant was confronted with practically four charges.

 

The lumping together of four offences or even of the offences under sections 409-and 467 P.C. and under the Act II of 1947 together is not covered by section 235.

 

The accusation, as it is, not protected by section 234 of the Code, nor is the combination protected by section 235 of the said Code.

 

It is not permissible for the prosecution to eombine and supplement the three sections in such a manner so as to contravene the provisions of any of the three sections. Abdul Hai Jamaley Vs. State (1964) 16 DLR (Dae) 159.

 

—Accused were charged for having in their possession on 3 different dates foodstuff in excess of quantities permissible under law - They were further charged for setting up mill and for crushing rice in violation of the East Pakistan Rice Mill Control Order, 1943.

 

Held : Five offences have been charged' in one trial and thus there was misjoindcr of charges which has vitiated the trial.

 

High Court competent to interfere in case of misjoind&r of charges under Article 98 of the Constitution as held by the Full Bench in the case of Abdul Kuddus (1961) 13 DLR 213;

 

Kazi Abdul Matin Vs. Sub-Divisional Magistrate (1968) 20 DLR 931

 

5.234  : Read with section 222(2): Charge under section 222(2) is to be treated as a charge for one offence for the purpose of section 234.

 

The words "one offence within the meaning of section 234", in section 222(2) arc significant. The charge framed under sub-section (2) of section 222 has to be treated as a charge of one offence for the purpose of section 234 only. It may be said that'll has no bearing as rcgnrds section 235 Cr.P.C. So far as section 235 Cr.P.C. is concerned all items of misappropriation have to be taken as all distinct offences.

Dishonest misappropriation and criminal misconduct fall within two different laws.

 

Abdul Molakb Khan Vs. The State, (1973)25 DLR 14

 

5.235  : Same transaction—Several persons animated by a common purpose and individually doing different offences, all liable participant to the offence joining it at subsequent stage, equally responsible.

 

State Vs. Darajuddin Mondal (1961) 13 DLR 256 : (1962) PLD(Dac) 424

—Nine misappropriations of different sums at different times charged in form of a lump sum by a single charge at the same trial. Trial bad for misjoindcr in absence of proof of same transaction.

 

Mojahiuddin Faridi Vs. State 9 PLD (Kar.) 814

 

—Misjoinder of charges under sections 147 & 242 P.P.C.—trial vitiated. (1958) 10 DLR (SC) 134

—The expression "by the same person" oecuring in section 235 of Cr.P.C. indicates that where there are more than one accused, the section has no application.

 

G»binda Chandra Pandit Vs. Crown (1954) 6 DLR 445

 

—The expression "by the same person" occurring in section 235 of Cr.P.C., indical.cs that where there arc more than one accused, the section has no application.

 

Gabinda Chandra Pandit Vs. Crown (1954) 6 DLR 445

 

—Trial for more than one offence when committed in a series of acts as to form the same transaction. A pcrusall of sec. 235 of the Cr.P.Codc clearly shows that ani accused may be charged with and tried at one trial for any number of offences which he is allcgedi to have committed in one scries of acts so connected together as to form part of the same transaction.

 

KM. Zakir Uossain Vs. The State (1976) 28 DLR 452

 

—The expression "same transaction" explained. The expression 'same transaction' has however not been defined in the Code. It should however be noted that a series of acts to be regarded as forming the same transaction must be connected together in some way, for instance by proximity of time, unity of purpose, unity of place and continuity of action. It is not necessary that all of them should be present to make several incidents parts of the same transaction. If the various acts arc done in pursuance of a particular end in view and as accessory thereto, they may be treated as parts of the same transaction. The real and substantial test for determining whether several offences arc connected together so as to form one transaction depends upon whether they are so related to one another in point of purpose or as cause and effect as to constitute one continuous action.

 

KM. Zakir Hossain Vs. The Stale (1976) 28 DLR 452

 

—Trial for more than one offence— "One series of acts so connected together, as to form the same transaction—Explained with reference to the facts of the present case: In the instant case, it has been proved that all the four advances of money were given between 19.2.1965 and 10.4.1965 for the same work, namely, the brick manufacture for Pabna—Trimohoni Road; the control of sale of tender forms and the acquisition of land were also related to and for the purpose of the same', work. The allegation was that the various acts were done in pursuance of a particular end in view, namely, to obtain pecuniary benefits for the contractor. It is evident that the scries of acts were conneciled together by proximity of time, unity of purpose; and continuity of action. Under these circumsitances the High Court has found that these acts undoubtedly formed parts of the same transaction within the meaning of section 235 of the Code and those acts were only specific instances or modes olr abuse of official position and formed one charge of criminal misconduct under section 5(2) of Act II of 1947.

 

KM.. Zakir Hossain Vs. Slate (1977) (SC) 29 DLR 250.

 

Ss. 235 & 239 : Joint trial of offences or persons—When can be held— Fundamental principle—The provisions of sections 235 and 239 vest a discretion in the Court to try offences of the kinds therein jointly in circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. Where a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, the Court should not exercise this discretion.

 

Even though sections 235 and 239 give a discretion to the Court to try certain persons and /or offences jointly, yet there are certain considerations which are more fundamental -than merely the convenience of the-procecding or trial. In a criminal trial, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause any serious embarrassment to him in the conduct of his defence should be avoided. Where joint trial is wrongly held, the trial is illegal irrespective of the question of prejudice.

 

Noor Ahmed Vs. Slate (1964) 16 DLR (SC) 233.

 

Ss. 235 & 403 : Same offence that was committed by the accused and as he has already been tried and convicted the second conviction is a coram non judice and trial is vitiated as being hit by section 403 Cr.P.C. The legislature has provided that separate charges referred to in illustrations (a) to (h) of S. 235 Cr.P. Code, respectively may be tried at the same time. The requirement of law is that separate charges could be made but they ought to have been tried in the same trial.

 

Md. Abdul Latif Vs. State (1977) 29 DLR 157.

 

S. 235(1) : "Same transaction" Test-Offences must be linked together to make a continuous whole—Offences of criminal breach of trust and forgery and falsification of accounts to cover such breach—Offences committed in course of "same transaction".

 

Golam Jilani Vs. Slate PLD (1957) (Lah.) 290.

 

—Trial for more than one offence if the acts arc so connected as to form the same transaction. When a person by forgery commits two offences—otic of which comes under section 467 and the other under section 193 PP.Code, he can be charged with and tried under section 235(1), Cr.P.Code, for both the offences together.

 

Abdul Hakim Vs. Slate (1958) 10 DLR 23.

 

—Application of the section—Charge of misappropriation under section 409 of the Penal Code coupled with one of criminal misconduct under section 5(2) of the Act II of 1947 in one and same trial.

 

Held: A charge of misappropriation can be tried under section 235(1) of the Code with a charge of criminal misconduct in respect of the corresponding amount to cover up the misappropriation because in such a case the misappropriation and criminal misconduct arc parts of the same transaction. But an act of misappropriation and an act of criminal misconduct in respect of a different act of misappropriation cannot be tried in the same trial as they cannot be said to have been committed in course of the same transaction. In the present case the charge under section 409 is not a charge in respect of a single act of misappropriation : as oiarnyas 411 acts of misappropriations were committed on a number of occasions, though within a space of one year. It cannot, therefore, be said that they were committed in course of the same transaction. Similarly their corresponding offences of criminal misconduct cannot also be said to have been committed in course of the same transaction. Obviously all acts of misappropriation have been lumped together in a single charge under the enabling provisions of law in sub-section (2) of section 222 Cr.P.C. which is evidently an exception lo the general rule.

 

Abdul Motaleb Khan Vs. The State (1973) 25 DLR 14.

 

8,235(2)—Accused cannot be sentenced under section 161, P.P.C. and also under section 5(2) of Prevention of Corruption Act, though his conviction under the two sections is valid in view of section 235(2).

 

Md. Yusuf Vs. Crown (1955) 7 DLR 302.

 

—Attacking complainant with knife and robbing him of his cash-box—Same transaction.

 

Akbar Shah Vs. Crown PLD 1950 (Bal) 21.

 

—Offence under section 409, Penal Code and that under section 5(2) of Prevention of Corruption Act not same kindof offence.

 

Abdul Motaleb Khan Vs. The State, (1973) 25 DLR 14.

 

S.236 : Additional or alternative charges—in case of doubt—Section 236 can be called in aid where in the case of one of the accused persons who is being jointly tried with others it is, at the time the charge is framed, doubtful which of several offences the facts which can be proved will constitute. In such a case an additional charge or a charge in the alternative can be added against that accused person.

 

Bashir Md. Vs. Crown (1956) 8 DLR (FC) 61 : PLD 1956 (FC) 147.

 

—Misjoinder -of charges—Eleven persons were charged under section 396 and alternatively under sections 302/120B of the Penal Code.

Held: The trial was vitiated by misjoindcr of charges. Neither sec. 239(d) nor scc.236 of the Code of Criminal Procedure justified such a joinder.

 

Crown Vs. A. Quddus (1953) 5 DLR 52 .

 

—Ss. 236 & 237 : Charge was framed under section 302, read with 149 P.P.Codc But conviction was founded on section 304(1), read with section 34 P.P.Code—Conviction valid in law in view of sections 236 and 237.

 

Ahmed All Vs. State (I960) 12 DLR 365 : (1960) PLD(Dac.) 828.

 

—If there is some element of doubt, a charge can be validly framed for a substantive offence read with sec. 149 P.P.C. and conviction can be founded and sentence can legally be passed for the substantive offence. The precise evidence was that the two accuseds shot dead two persons, one of the accused shooting and killing one person and the other accused shooting and killing another person. On account of an allegation that there was a 3rd shot by another person which hit none, the Court framed a charge against the two accused under section 302 read with sec. 149. P.P.Codc.

 

The Court, however, convicted each of the accused under section 302 and sentenced each to death. The contention was raised that the two accused had been prejudiced by failure at the trial to place them upon a charge of direct liability.

 

Held: It is true that specific charge under sec. 302,P.P.C. might also have been framed against each of the accused individually, but by section 236, Cr.P.Code, the Court is expressly permitted to . frame a charge in respect of any of the several offences which might have been charged. By the application of section 237, Criminal P.C., a conviction can legally be obtained, in a case of this kind, of any offence which appears from the evidence to have been committed, although it was not expressly charged. When therefore at the conclusion of the trial, the learned Sessions Judge was satisfied regarding the individual liability of each of the accused it was open to him to record a conviction against each of them under section 302, P.P.C.

 

Md. Anwar Vs. Slate (1957) 9 DLR S.C. 1.

 

S. 237 : Once a Court takes cognizance, it is open to it subsequently to charge the accused with any offence, which appears to have been committed by him.

 

B. Fane-Saunders Vs. Abdus Satter (1955) 7 DLR (W.P.C.) 99.

 

—When a Court takes cognizance of an offence it is open to him to subsequently charge the accused with any other offence which appears to have been committed by him, even though the Court had not issued process for that offence in the first instance when the complaint was made.

 

B. Fane-Saunders Vs. A. Sailer (1955) 7 DLR (W.P) 99.

 

—When a charge u/s.302 P.P.Code fails against an accused there is nothing illegal to convict him under section 201 P.P.Code, if the offence under this section is established against him. This is permissible even though the charge u/s.201 was not in terms- framed against him as such a course is permissible under the provision of section 237 of the Criminal P. Code.

 

Afsaruddin Choukidar Vs. State (1961.) 21 DLR 783.

 

S. 238 : Person charged, where circumstances will permit, with commission of the substantive offence can be convicted for abetment of commission of that offence even though not so charged—It can not be laid down as a matter of universal rule that in no case can there be a conviction for abetment when the accused is charged with the substantive offence or vice versa. It cannot also be held as an inflexible rule that in every case where a charge is framed for abetment the accused can be convicted of the substantive offence or vice versa simply because both the charges could be framed against him. Each case will depend upon its facts and the relevant question that has to be answered is whether the evidence adduced in support of the charge gave sufficient notice of all the facts which could constitute the offence for which he is convicted. It the answer is in the negative, the conviction must be set aside but if, however, the answer is in the affirmative, the conviction can be maintained.

 

State Vs. Abed Ali : (1962) 14 DLR 701.

 

1853

Constitution of Pakistan, 1962 -13

Citation: (1951) 3 DLR 144, 1956 (SC) 743; (1956) 8 DLR (SC) 135, (1960) 12 DLR (SC) 53, (1963) 15 DLR. 466, (1956) 8 DLR (WPC) 21, (1968) 20 DLR 455, (1972) 24 DLR (Dae) 57, 2 PCR 135, (1958) 10 DLR 61, (1956) 8 DLR (PC) 61 : PLD 1956 (FC) 147, (1958) 10 DLR (

Subject: Constitution of Pakistan

Delivery Date: 2018-09-09

When a person is charged with one offence, he can be convicted of another

The test to be applied as to whether an accused person charged under one section can be convicted under another section is whether he had notice of the offence of which he is to be convicted and so was not prejudiced by the conviction.

 

Jaifar Vs. IdrisAH (1951) 3 DLR 144.

 

—When a person is charged with one offence, he may be convicted of another, if no prejudice is caused.

 

Md. Faruq Vs. State : PLD 1956 (SC) 743; (1956) 8 DLR (SC) 135.

 

—When the graver charge gives notice of all circumstances going to constitute the minor offence, conviction for the minor offence without a charge is legal. An offence under sec. 448 P.P.Code is not a minor offence in relation to the offence of dacoity under section 395, or receiving looted properly under section 412—Conviction for the former offence without the accused being charged with it is illegal.

 

Sultan Ahmed Vs. State (1960) 12 DLR (SC) 53.

 

—When offence under section 364 P.P.Code is established but no charge has been framed under that section—the accused can be convicted for the offence under section 364 under the provisions of section 238-Cr.P.C.

 

Akaluddin & Ors. Vs. Slate : (1963) 15 DLR. 466.

 

—If the major offence and the minor offence with which the accused arc charged arc quite distinct and apart as far as their essential ingredients are concerned, sec. 238 will not help and the conviction of the accused for the so-called minor offence will not be sustainable unless and until the accused is specifically charged with it.

 

Md. Hanif Vs. Crown (1956) 8 DLR (WPC) 21.

 

Offence consisting of several particulars — conviction on minor offence, though not charged, lawful. Under section 238 when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and such combination is proved he may be convicted of the minor offence though he was not charged with it. The section further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged witlr it.

 

Chand Mia Vs. The State, (1968) 20 DLR 455.

 

—Abetment of an offence is not a minor offence within the meaning of S.234 Cr.P.C. The substantive offence and its abetment arc two distinct offences and each has got its ingredients. A charge for substantive offence gives no intimation of a trial to be held for abetment.

 

Tamiza Khaloon Vs. State, (1972) 24 DLR (Dae) 57 .

 

Section 239

 

Synopsis.

 

1. Applicability, scope and interpretation.

 

2. Conspiracy.  

 

3. Illegality.

 

4. Joint trial.

 

5. Misjoinder.

 

6. Principal and abettor.

 

7. Receiving stolen property.

 

8. Same transaction.

 

9. Separate Trial.

 

10. Miscellaneous.

 

1. APPLICABILITY,  SCOPE AND INTERPRETATION

When one considers all the sections of the Chapter, it becomes apparent that the intention of the Legislature in using the words "former part of this Chapter" was that all sections in Chapter XIX, which precede sec. 239 were applicable to the extent to which they were not repugnant to the provision of that section itself.

 

Nur Din Vs. Crown 2 PCR 135.

 

2.   CONSPIRACY

In a charge of conspiracy, all manner of acts, whether or not they are done in pursuance of the conspiracy cannot come under clause (d) of section 239. The offence of conspiracy, being a substantive offence in itself, commences at the point of time when the conspirators first get together and form the design and continues upto the point of time when the object of the conspiracy has been achieved.

 

State Vs. A. Rahim (1958) 10 DLR 61

 

3.  ILLEGALITY

Infringement of section 239, clause (d) would constitute an illegality as distinguished from an irregularity.

 

Abdur Rahim Vs. Abdul Jalil (1958) 10 DLR 61

 

—Non-compliance with the provision of section 239 leads to illegality and cannot be cured under sec.537. Cr.P.Codc.

 

Nur Din Vs. Crown 2 PCR 135(147 n-hand. Col)

 

4.  JOINT TRIAL

Alternative charges when persons are tried jointly—The section permits the trial on alternative charges against any of the accused persons who are being jointly tried under sec. 239.

 

Bashir Vs. Crown (1956) 8 DLR (PC) 61 : PLD 1956 (FC) 147

 

—It can not be laid down that where accuseds arc being tried together under section 239, it is not possible to have an alternative charge against one of those accused persons.

 

Bashir Vs. Crown (1956) 8 DLR (FC) 61: PLD 1956 (FC) 147

 

—Joint trial not legal unless offences charged are committed in the same transaction. When a trial is held in a mode different from that laid down in the Code, it is bad and no question of prejudice arises.

 

Md. Mosaddar Vs. State (1958) 10 DLR (SC) 129.

 

—If two or more accused persons are to be jointly tried with regard to different offences of the same kind committed within a period of twelve months the accusation must be that all the offences were committed jointly by all of them.

 

Nur Din Vs. Crown2PCR'135(144rt-hand.col)

—Joint trials of different persons are allowed because they are accused of having committed the same or similar offence connected one with the other and it it were permissible to add against one of the accused persons charges which have no connection with the charge with respect to which all of them are being tried it is by no means unlikely that the case of those accused persons who are not tried for the additional charge will be prejudiced. A mode of trial which is likely to confuse any of the accused persons must as far as possible be avoided.

 

Nur Din Vs. Crown 2 PCR 135 (145).

 

—Joint trial of a receiver of properly looted in a dacoity along with persons involved in the dacoity who were charged with dacoity with murder under section 396 P.P.C.

Held : Trial valid.

 

Ali Vs. Crown (.1954) 6 DLR (WPC) 62.

 

—Joint trial of two persons—Each having received separate lots of property stolen in one theft—trial legal.

 

Saidoo Vs. Crown PLD (Lah)., 535

 

—Joint trial not mandatory always and should not be resorted to when it,is likely to embarrass the accused persons. This section gives a judicial discretion to the court to try such cases jointly but the manner in which this discretion should be exercised must depend on the facts of each case. Where the case is of such a nature that the two accuseds should not be tried jointly, such joint trial should not be held.

 

Lai Mohammad Sarder & others Vs. State (1960) 12 DLR 423 : (1960) PLD (Dae.) 931

 

—The  section   is   an   enabling   section. and the discretion rests with the court whether it would in a particular case exercise that power of trying more than one person jointly even in cases 'which are covered by the said section. It is only reasonable to expect that if a court finds that such a" trial would prejudice either or any of the accuseds or embarrass them in any way, the discretion to so try. jointly will not be exercised.

 

Almas Ali Khan Vs.-State (1959) 11 DLR 221 : (1959) PLD (Dae) 750: (AIR 1947 Mad. 524 rel 16 C.WJV. 600 dissented).

 

—Joint trial of offences of persons— When can be held—Fundamental principle—The provisions of sections 235 and 239 vest a discretion in the Court to try offences of the kinds indicated therein jointly in circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. Where a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, the Court should not exercise this discretion.

 

Even though sections 235 and 239"give a discretion to the Court to try certain persons and /or offences jointly, yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial. In a criminal trial, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause any serious embarrassment to him in the conduct of his defence should be avoided. Where joint trial is wrongly held, the trial is illegal irrespective of the question of prejudice. Noor Ahmed Vs. State(1964) 16 DLR (SC) 233

—Joint trial of two persons where one of the accused was charged under section 409 and another under section 408 P.P.C. and each was also charged alternatively under sections 408/109/ and 409/109 respectively.

 

Held : The charges in the present case were in the alternative; firstly, the appellant was charged under section 409 P.P.Code and in the alternative for abetment under section 408 whereas accused Khaliq was charged substantively under section 408 and for abetment of an offence under section 409 and, therefore, the position, was that the principal offender and the abettor had, on the basis of the accusation made, been tried together. This was permissible under the law.

 

Almas Ali Khan Vs. Slate (1959) PLD (Dae) 750.

 

—Different offences by several persons, committed in course of the same transaction—all of them can be tried together under clause (b) of the section. A abetted B and C to murder X. Thereupon B and C murdered X and while murdering X also caused injuries to D and F. Question was while A was tried with B and C for an offence of murder, could he be tried along with D and F for offence under sections 323/34 P.P.C. which A did not abet.

 

Held: Such a trial is valid under section 239 (b) (d). Muhammad Sajjad Vs. State (1960) 12 DLR (WP) 55 : (1960) PLD (Lahore) 520

 

—In case of joint trial compliance with the provisions of clause (d) mandatory, the offence must be committed in the course of the same transaction—In such a joint trial there is really no question of - prejudice but the question is whether the law with regard to the mode of trial has been contravened. If it has been contravened the trial is bad and no question of curing any irregularity arises.

 

On a charge which falls under clause (d) of section 239, it is necessary that the offences must be committed in the course of the same transaction. In order to determine whether the different offences arise out of the same transaction, one has to look to the proximity of time and place and community of purpose.

 

Mawadin Vs. State (1963) 15 DLR (WP) 55.

 

5. MISJOINDER

Eleven persons were charged under section 396 P.P.C., for dacoity with murder and also alternatively charged under sees. 302/120B, P.P.Code, for entering into conspiracy to commit murder.

Held: The trial was vitiated by misjoinder of charges. Neither Sec. 236 nor sec.239 (d) of the Code justified such a joinder.

 

Crown Vs. A. Quddus (1953) 5 DLR 52.

 

—No nexus between possession of instruments of counterfeiting and possession of forged documentsmisjoinder of charges—Where there is no nexus between the possession of the instrument of counterfeiting and the possession of the forged documents as specified in the charges, the trial of the accused, in respect of both the charges, is a misjoinder of charges.

 

Ashrafuddin Ahmed Vs. State (1964) 16 DLR (Dae) 223.

 

6. PRINCIPAL AND ABETTOR

S.239(b) : Principal offender and the abettor cannot be tried together. Section 239 (b) does not permit the trial of a principal offender and a person accusqd of abetment, unless the trial relates to only one offence and the misjoinder of charges and persons in a case of this type is not a mere irregularity but illegality. Joint trial in respect of large number of counts is to be deprecated, even though the law may not prohibit it, for two reasons, (1) that the provision relating to misjoinder of charges and accusation is unfortunately very sparsely understood and (2) that this would eliminate the chances of any trial being eventually declared vitiated for misjoinder of charges of accused.

 

State Vs. Mirza Azam Beg (1964) 16 DLR (W.P.) 127.

 

7.  RECEIVING  STOLEN  PROPERTY.

"Transferred by one offence"—Refers to original offence of theft—stolen properties found in possession of various accuseds—Subject-matter of more than one theft Clause (0 not attracted—Joint trial held illegal—Conviction quashed.

 

Waryam Vs. Crown (1950) 2 PLD Lah. 348

 

8.  SAME TRANSACTION

S. 239(d) : Usual criteria of determining whether offences arise in the Course of same transaction is to sec whether they are connected with each other. State Vs. A Rahim (1958) 10 DLR 61 Same transaction"—Community of purpose or design and continuity of action are essential elements. (1958) 10 DLR (SC) 29

—Sameness of transaction must be established by direct or circumstantial evidence—offence must have been committed by all the accused jointly within the period of 12 months.

 

Nur Din Vs. Crown 2 PCR 135(139)

 

—Question whether several acts, or events constitute one transaction or not is a question of fact to be determined by reference to facts and circumstances in each case.

 

S.M.K. Alvi Vs., Crown (1953) 5 DLR(F.C.) 161 (170 left-hand-col)

 

—For the determination of the sameness of transaction within the meaning of section 239 (d), it is the accusation that has to be looked at and not the result of the trial.

 

G. Muhammad Vs. Crown (1954) 6 DLR (WPC) 170.

 

—The point of time at which it falls to be determined whether different offences charged were committed in the course of the same transaction is the stage of accusation, and not the stage of conclusion of the trial.'

 

S.M.K.Alvi Vs. Crown (1953) 5 DLR (F.C.) 161 (170 rt-hand Col.)

 

—In order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct or circumstantial, in support of it.

 

Nur Din Vs. Crown 2 PCR 135

 

—Sameness of transaction is to be determined by reference to initial accusation and not to subsequent charge-Five accuseds concerned in murder and seventeen including these five were concerned in causing injuries to prosecution witnesses after termination of first incident—joint trial not allowed by law.

 

Md. Khan Vs. Crown (1953) 5 PLD (Lah.) 262

 

—Same transaction—Continuity of action—Transaction being the same mere omission to mention certain connecting links, does not matter much—The facts are that the appellant No.l who disposed of the objections case cx-partc on 17-11-60, became annoyed with Maju Bibi (P.W.I) when she approached him first to know as to why her case was not being taken up and, secondly, when she appeared before him with the review application. Although he fixed a date for hearing the review application, he whispered into the ears of his peshkars, appellant No.2, who, in his turn, asked Maju Bibi to see the appellant No.l at his residence that evening. When Maju Bibi went to the residence of appellant No.l that evening, he demanded bribe from her not only for himself but for appellant No.2 as well.

 

According to his direction, Maju Bibi gave bribe to appellant No.l on 29-11-60 and gave Rs.10.00 as bribe to appellant No.2 through the hand of her son on 30.11.60.

Held;Not only there was community of purpose or designand continuity of action between the appellant No.l and appellant No. 2 but also that the third factor proximity of time and places is present in the instant case.

 

If there is sufficient and good evidence to show that the transaction was one and the same, then the mere absence of certain links in the accusations will not make the trial illegal. If at all it is a defect, it is curable, under section 537.

 

Delwar Hossain Vs. State (1964) 16 DLR (Dae) 349

 

—Trial .in cases of different offences by different accuseds—Clause (d) of section 239 of the Code of Criminal Procedure seems to be the appropriate provision of law applicable in the instant case as clause (d) of section 239 of the Code provides that persons accused of an offence and persons accused of abetment may be charged and tried together. The petitioner Zakcr Hossain was charged as the principal accused and the other persons as abettors. According to their Lordships of the Privy Council Babulal Vs. Emperor (AIR 1938 P.C.130) the question of the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation and not by looking at the result of the trial. It is on the basis of what appears on the face of the accusation that the court may proceed to charge and try.

 

Md. Abdul LatifVs. State (1977) 29 DLR 157'

 

9. SEPARATE TRIAL

S.239 : If one person commits breach of trust in respect of a certain amount and another amount during a period of one year, they must be charged separately. They may be tried in the same trial if permissible under sec. 239,

 

A. Salam Chowdhury Vs. Crown (1952) 4 DLR 80.

 

10.   MISCELLANEOUS.

—Joinder of charges under sections 302 and 201 of Pakistan Penal Code, against two persons illegal. The appellant as well as B, another accused were both placed on their trial to answer two different charges.

The appellant was charged under section 302 P.P.C. which read as follows :-

 

"That you, on or about 10-9-55 at Guniak, committed murder by intentionally or knowingly causing the death of...............

 

The other accused (who had been acquitted) was charged under section 201, P.P. Code, as follows :-

"That you on or about 10th day of Sept., 1958 atGoniak knowing or having reason to believe that offence, to wit, murder punishable with death has been committed did cause certain evidence of the said offence to disappear...........

 

Held: The offences alleged lo have been committed by the two accuseds arc unconnected with each other and arc separate offences and as such they could not be tried together in the same trial. It makes no difference that the accused B has been acquitted.

 

Chota Abu Vs. State (1960) 12 DLR 392 : (1960) PLD (Dae) 918 : (1958) 10 DLR 61 fol. (1954) 6DLR. 171] (1955) 7DLR 572 ref.

1854

Constitution of Pakistan, 1962 -14

Citation: (1953) 5 DLR 26, (1986) 38 DLR 4, (1985) 37 DLR 107, (1986) 38 DLR 4, (1985) 37DLR 111, (1950) 2 PLD (Lah.) 247, (1956) PLD (Lah.) 174, (1950) 2 PLD (Lah.) 247, (1975) 27 DLR 242, (1974) 26 DLR 350, (1959) 11 DLR (514);(1960) PLD (Dae.) 213, (1962) 14

Subject: Constitution of Pakistan

Delivery Date: 2018-09-10

S.240 : When no order on a charge is made, the inference is one of acquittal— A charge can be either withdrawn or stayed under section 240. If it is not so withdrawn or stayed, the Magistrate is bound to pass judgment on each count and pass an order cither of acquittal or conviction, as the case may be. It is not open to a Magistrate to pass an order on a charge framed against an accused person. The inference which would follow from not recording a conviction would be that the accused was found not guilty and was acquitted.

 

Abul Mansur Rehmah Vs. the Crown (1953) 5 DLR 26.

 

S. 241 : Compliance with the different 'provisions of the section providing discharge of accused by the Trial Magistrate, stressed Magistrate acted illegally in dealing with the case in the manner he did.

 

Haji Azizur Rahman Vs. Syeedul Hague Chowdhury (1986) 38 DLR 4.

 

—When the accused shall, before framing the charge, be discharged. If, before framing the charge the Sessions Court considers that there is no sufficient ground for proceeding against the accused, then it shall discharge the accused and record the reason for so doing u/s 265C Cr.P.C. A Magistrate has similar power u/s. 241A Cr.P.C.

 

Md. Taheruddin Vs. Abul Kashem (1985) 37 DLR 107.

 

S.241A : Expression "record his reasons for so doing" lays obligation on the Magistrate as to how he shall proceed to deal with the case before passing an. order of discharge.

 

Haji Azizur Rahman Vs. Syedut lloque (1986) 38 DLR 4.

 

—Section 241A (and section 265C) envisage recording a finding of mprima facie case warranting framing of a charge—Its scope does not envisage any thing beyond this.

 

Haji Azizur Rahman Vs. Syeedul lloque (1986) 38 DLR 4.

 

—An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal—In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted.

 

An order of discharge or dismissal passed by the Magistrate on consideration of the evidence on record will have the effect of acquittal. In that circumstance there cannot be a fresh application for starting a fresh proceeding nor an application for revival of the proceedings can be made before the court for such revival.

 

Magistrate passed an order of discharge of a case on account of the absence of the parties and without going into the merits of the case.

 

Such an order is not a final order exhausting the power of the Magistrate and making him functus officio.

The term "further enquiry" in its wider meaning includes re-consideration of the evidence already on record as well, and in some cases it means a new enquiry altogether by a different Magistrate.

 

Nurul Islam Vs. Thd State (1985) 37DLR 111

 

S.242 : The trial Judge, in a case tried as a summons case, recorded the statement of the accused before the prosecution evidence had concluded.

 

Held : 'Judge had not committed any illegality.

 

Haidar Vs. Crown (1950) 2 PLD (Lah.) 247

 

—Omission to examine again fully at the close of prosecution evidence under section 242 Cr.P.C. Not fatal to trial in absence of prejudice.

 

Md. Yakub Vs. Crown (1956) PLD (Lah.) 174

 

—The trial Judge, in a case tried as a summons case, recorded the statement of the accused before the prosecution evidence had concluded.

 

Held : Judge had not committcd'any illegality.

 

Haidar Vs. Crown (1950) 2 PLD (Lah.) 247.

 

Ss.242 & 342 :—Provision of sees. 242 and 342 must be complied with even in summary trials envisaged under chapter XXII of the Code—Even when holding the summary trial the Code cannot ignore some of the mandatory requirements of the law.

 

Abul Hashem Vs. The State(1975) 27 DLR 242.

 

—Accused facing trial must be told of the specific allegation brought against him—Neither in the petition of complaint nor in the examination of the accused under sections 242 and 342 of the Cr.P.Code the accused was told that there was allegation against him for unauthorised construction of any building.

 

Held: Conviction of the accused in such circumstances for unauthorised construction was bad in law.

 

Nizamuddin Mia Vs. The State (1974) 26 DLR 350

 

—S. 243 : "His admission shall be recorded as nearly as possible in the words used by.him"—A conviction without taking any evidence and purporting to be based on a plea of guilty can not be sustained when the accused denies having pleaded guilty and the said plea is not found recorded in accordance with the provision of section 243.

 

The provision in the section for the recording of the admission of the accused is a statutory provision designed to enable not only the trying court but also the superior courts to know that the accused understood that he was really pleading guilty to the offence charged,

 

Habibur Rahman Vs. State (1959) 11 DLR (514);(1960) PLD (Dae.) 213.

 

—Conviction is legal solely on the confession of the accused—If the accused himself admits his guilt there is no necessity to enter into the whole gamut of a legal trial. The guilt of the accused having been admitted the necessity of leading evidence to prove the guilt Of the accused docs not arise.

 

Slate Vs. Satyapada Biswas (1962) 14 DLR 121 = 1962 PLD (Dae) 340.

 

S.243 : Plea of guilt does not amount in law that the accused has committed the offence—Court's duty is to see whether the facts brought on record amount to an offence in law—When a person pleads guilty he simply admits the facts which are said to constitute an offence but the question whether the said facts constitute an offence or not under the law is a question which is to be decided by the Court.

 

SerazulHague Master Vs. The State, (1970) 22 DLR 124.

 

—Accuseds admission to be recorded in his own words—Section 243, of the Criminal 'Procedure Code provides "inter alia^ that if the accused admits that he has committed the offence of which he is an accused, his admission shall be recorded as nearly as possible in the words used by him. In the instant case, the provisions of section 243 had not been complied with and for this reason also the conviction of the petitioners is unsustainable.

 

Md. Rezzaqul Islam Vs. The State, (1968) 20 DLR 461

 

S.245 : Order of discharge to be treated as an ordej of acquittal—-Evidence taken under sec. 244—Magistrate passed order of discharge—He could only pass an order of acquittal—Order of discharge should be taken as an order of acquittal under sec. 245.

 

Md. Vs. Mir Hasan PLD1951 (Pesh) 4

 

S.,247    :     Acquitting     the     accused without  examining   the   complainant—The complainant himself was present in Court on the day fixed for cross-examination of the P.Ws. but his witnesses did not put in any appearance, whereupon the Magistrate, without waiting for them, expunged their evidence arid recorded an order acquitting the accused.

 

Held: The order acquitting the accused cannot be maintained. (1954) 6 DLR 30

 

—Non-appearance of the complainant when can be a good ground for discharging the accused—Non-appearance of the complainant may be a good ground for acquitting the accused in a summons case in accordance with the provisions of section 247 of the Code of Criminal Procedure, unless for some reason adjournment of the case is considered necessary by a Magistrate. Absence of the complainant may also be a good ground for discharge of the accused under section 259 Cr.P.C. in a warrant case at any stage before the charge has been framed, if the offence can be lawfully compounded or is not a cognizable offence. Apart from sections 247 and 259 of the Code, there is no other provision in the Code empowering a Magistrate to discharge the accused merely on the ground of absence of the complainant.

 

Mur Momammad Shaikh. Vs. Niranjan Mondal, (1971) 23 DLR 5

 

—The complainant does not appear. "The complainant does not appear" means that the complainant having knowledge or information of the date of trial or adjournment fails to appear.

 

Mantu Mia Vs. Aklakur Rahman (1976) 28 DLR 74

 

—Provisions for acquitting an accused person u/s 247 Cr.P.Code have no application when he is to be tried under P.O. SO/72. Special Magistrate acted illegally in acquitting the accused on an erroneous impression that as the accused is to be tried in the summons procedure under P.O.No.50 of 1972, he is entitled to acquit the accused u/s 247 Cr.P.C. if the person who lodged the FIR is absent in the court.

 

Solicitor, Govt. of Bangladesh Vs. Yasin AH. (1982) 34 DLR 73

—In a complaint case, when the complainant does not appear, the Magistrate must acquit the accused, unless the magistrate thinks proper to adjourn the case.

 

Md. Islam Vs. State (1984) 36 DLR 349.

 

—If the cognizance is taken upon a Police charge-sheet, S.247 Cr.P.C does not apply. Section 247 of the Cr.P.C. docs not apply unless the case is instituted upon a complaint. As in this case the cognizance of offence against the accused respondent was taken by the learned Special Magistrate on the charge-sheet submitted by a Sub-Inspector of Police, the provision of S$247 of the Cr.P.C. has no manner of application.

 

Solicitor, Govt. of Bangladesh Vs. Yasin AH (1982) 34 DLR 73.

 

—Three conditions in the matter of acquittal u/s. 247 Cr.P.C.—Acquittal order illegal in case of non-existence of these conditions :- In order to make an order under section 247 CrP.C. three conditions are to be satisfied. There should be service of summons, secondly, the date fixed should be the date for appearance and thirdly, on that date the complainant is to be found absent. Unless these conditions are present the Magistrate is not authorised to pass an order of acquittal.

 

Golam Nasir Vs. Abdul Aziz. (1987) 39 DLR 103.

 

S.247 (read with S.204)—If the complainant remains absent on the date fixed for hearing or on subsequent dates—though the accused appeared as directed — the court must acquit the accused.

 

Aziran Khatun Vs. Abu Tajeb. (1987) 39 DLR 272.

 

—A Magistrate, however, can acquit an accused if the complainant remains absent on the day fixed for accused's appearance—There is thus no scope for recording an order of acquittal merely because the prosecution witnesses were not present on the date of trial. The Code of Criminal Procedure simply does not vest the Sessions Court with such kind of power. A Magistrate shall acquit the accused, if a complainant, other than a public servant, fails to appears on the date appointed for the appearance of the accused, u/s. 247 Cr.P.C. but there is no corresponding provision in the Code of Criminal Procedure empowering the Sessions Court to exercise similar powers in a case triable by the Sessions Court.

 

Md. Taheruddin Vs. Abul Kashem (1985) 37 DLR 107.

 

5.249     :     Certain    Magistrates    are empowered   to   release   accused   without pronouncing Judgment—A Sessions Judge has no such power. Section 249 Cr.P.C. empowers certain Magistrates to stop the proceedings of a case instituted otherwise than upon complaint at any stage without pronouncing any judgment cither of acquittal or conviction, and thereupon to release the accused, but the Sessions Court has no such corresponding power. .

 

Md. Taheruddin Vs. Abul Kashem (1985) 37 DLR 107.

 

5.250       :       False       or       vexatious accusation—Caution. It is undesirable to pass an order under section 250 without considering the entire evidence which the complainant has adduced. From the mere fact that some of the witness made discrepant statement it is not safe for the Magistrate to say that he is satisfied that the accusation was false and still less to say that it is vexatious, ignoring completely other important evidence on record.

 

Abdul Jalil Vs. A. Sabur (1953.) 5 DLR 169.

 

—Term of imprisonment if can in aggregate exceed 30 days. The term of thirty days' imprisonment in default of payment of fine under sec.250 can be imposed in respect of each of several accused in whose favour payment of compensation has been ordered though the aggregate term of imprisonment exceeds thirty days.

 

AH Hossain Vs. Akkas Ali (1955) 7 DLR 270.

 

—Magistrate to record the complainant's examination and his explanation in the judgment—It is true that in a proceeding under sec.250 it is not necessary that the actual words used by the complainant in his

complaint should be recorded separately as in the case of an accused under sec. 342 but there is hardly any doubt that the Magistrate should at least indicate in his judgment that he asked the requisite questions and he should set out the explanation the complainant gave and say whether he thought the explanation satisfactory, and if so, why.

 

Hossain Vs. Akkas Ali, 7 DLR 270.

 

Compensation may be awarded after examination of all the witnesses—It is only , after the examination of all the evidence, which the complainant wants to adduce in a proceeding under sec.250, a Magistrate can come to the conclusion that a case is false and frivolous or vexatious and can award compensation to the accused. Though he can discharge the accused at any stage, he is not entitled to order compensation without examining all such witnesses except in a very exceptional circumstance.

 

Ali Hossain Vs. Akkas Ali (1955) 1 DLR 270.

 

—Mere acquittal is no ground for a proceeding under section 250, that might happen on various reasons. Unless the materials of the case would definitely indicate that the prosecution was started out of spile and malice proceeding under section 250 can never be taken.

 

Haider Hossain Molla Vs. Akmal Khan, (1966) 18 DLR 206.

 

Investigating officer not examined— its effect. Failure to examine the investigating officer, in a proceeding under sec. 250, who submitted the charge-sheet against the accused persons, renders the proceeding invalid.

 

Ali Hossain Vs. Akkas Ali 7 DLR 270.

 

8.250(1) : Complaint lodged under section 107 of the Code even if false and frivolous does not justify initiation of proceeding under section 250. The objpct of section 107 is to prevent the commission of an offence. Therefore, a person against whom action is taken by court in advance of a commission of an apprehended crime cannot fall within the expression "accused before a Magistrate of any offence." To justify the application of this section, a person must be an accused of an offence already committed.

 

Where the respondents were not accused of having committed any offence, the only charge being that they are likely to commit an offence, a proceeding under the section 250 (I) is not applicable and any order of compensation is illegal.

 

Golam Kader Vs. Fazal Din (1962) 14 DLR (SC) 188 = (1962) PLD (SC) 480.

 

S. 250(1)This section docs not warrant order to pay compensation against a person who only instigates the giving of false information but does not himself make the complaint or give the information to the Police.

 

Abdul Quddus Vs. Hiran Bala (1962) 14 DLR 562.

 

S.250B : The word 'documents' in S.250B explained as those referred to in S. 173 but not including any documents which the .parties may use under the Evidence Act. A primary legal duty has been cast upon the Magistrate to consider first the police report and the document sent with that report. The word "documents" in section 250B necessarily includes the statements of the witnesses recorded under section J61 Cr.P.C. and other documents e.g. postmortem examination report, etc. which are supporting materials of the report u/s. 173 Cr.P.C. and collected by the police during investigation, or in other words, it can precisely be said that documents referred to in sub-sections (3 A) and (3B) of section 173 Cr.P.C. It docs not include those documents, which the parties may use in accordance wilh the provisions of the Evidence Act at the trial either to prove their respective cases or to disprove the case of their adversary.

 

Saber Ahmed Vs. Manzur Mia (1983) 35 DLR 213.

 

—The words "opportunity of being heard" to be understood as meaning that the parties can argue thcjr respective cases in favour of framing a charge or for discharging the accused.

 

Accused may be discharged even without examination of any witnesses—Before framing a charge it will not be proper to allow parties to adduce evidence. Saber Ahmed Vs. Manzur Mia. (1983) 35 DLR 213

—Circumstances where documents u/s. 25GB may be taken into consideration before framing a charge.

But in the facts and circumstances of a particular case if it appears to the Magistrate that the investigation officer failed to send any "document" which, he was required u/s. 173(3A) Cr.P.C, to send along with his report and is so proximately connected with the alleged accusation and may be legally proved under the Evidence Act and prima facie and with reasonable certainty, conclusively negates the accusation against the accused, there cannot be'any reason for not taking into consideration such document under section 250B Cr.P.C. before framing the charge, if the accused produces such document at lime of his examination under the section.

 

Saber Ahmed Vs. Manzur Mia. (1983) 35 DLR 213.

 

—Privilege of an accused person to obtain an order of discharge u/s. 2$0B before a charge is framed has been taken away by repealing that section, but this repeal will not affect the operation of the provision of repealed section 2SOIJ. The repealed provision is not a procedural one and it shall not affect the privilege or right of the accused persons or affect the power of the learned Magistrate to discharge the accused persons as he has done on consideration of the police report and comments on record and. hearing the parties. The learned Additional Sessions Judge misconceived the legal effect of the repealed section as contemplated in section 6(c) of General Clauses Act and thus committed an illegality in setting aside, the order of discharge of the accused petitioners under section 250B of the repealed enactment.

 

DidarulAlam Vs. The State (1983) 35 DLR 447.

 

S.250E(3) : Discretion lies wilh the trying Magistrate to recall for further cross-examination any prosecution witness—Defence to satisfy the Court as to necessity of such rc-cross-cxamination.

 

Suratu Kr. Biswas Vs. Cecil Sunder Baroi (1982) 34 DLR 305.

 

—The succeeding Magistrate may in his discretion act on the evidence recorded by his predecessor or partly by his predecessor and partly by him and he is to decide which witness should be recalled for cross.

Defence required to submit points on which it wants to cross-examine any witness whom it wants to recall (which should not be shown to the prosecution).

 

Suratu Kr. Biswas Vs. Cecil Sunder Baroi(1982)34 DLR 305.

 

Ss. 252 & 253 : Discharge of an accused under sec. 253 —No fresh prosecution with respect to the same offence will lie. In the present case on a number of dates fixed for hearing no evidence was produced by the prosecution before the Magistrate. The complainant who had lodged the first information report was himself under detention and did not appear and thereupon the Magistrate discharged the accused under section 253 without recording any evidence holding that the charge was groundless. Subsequently on an application made by the Court Sub-Inspector the Magistrate revived the case for a dcnovo trial. The order of the Magistrate was upheld upto the High Court on appeal to the Supreme Court.

Held : Once the Magistrate discharges the accused the whole of the authority granted by the Cr.P.Code, in respect of the proceedings before him, is exhausted and he is not empowered to take any further proceedings. A final order having been passed the proceedings are closed, and he is henceforth funclus officio. To hold otherwise would amount to granting him a power of review which power he does not possess.

 

Further held : An express bar to fresh proceedings was not essential; when the law provides for the exercise of jurisdiction by a Court the jurisdiction will be exhausted if it is exercised once. The jurisdiction which the Code granted to the Magistrate by sections 252 and 253 of the Code, having been exhausted, it.is for him who invokes a power of revival to establish the existence of such power. In the absence of a specific provision the power shall be presumed not to exist.

 

—An order of discharge which is passed on the merits and which is not plainly or substantially an order, passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal.

In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted.

 

In a proper case an application for revival may amount to a fresh complaint but barring that for the reasons already recorded a revival is not possible.

 

Abul Hossain Sana Vs. Suwalal Agarwal & State (1962) 14 DLR (SC) 96 : (1962) PLD (SC) 242 (Comment in the 14 DLR at page III of the Editorial note may be seen).

1855

Constitution of Pakistan, 1962 -15

Citation: (1968) 20 DLR 662, (1956) 8 DLR 277, (1952) 4 DLR 369, (1956) 8 DLR 325, (1961) 13 DLR 581', (51 C.W.N. 484), (1983) 35 DLR 32, (1970)22 DLR 199, (1971)23 DLR 5, (1968) 20 DLR 55, (1978) 30 DLR 344, (1984) 36 DLR(AD) 58, (1956) 8 DLR 325, (1968) 20 D

Subject: Constitution of Pakistan

Delivery Date: 2018-09-10

Discharging an accused without complying with the procedure laid down in sections 252 & 253 Cr.P.C.—illegal. The S.D.O. in this present case was satisfied on receipt of the local report that the accused person could be charged under section 379 for cutting and keeping the paddy belonging to the complainant and summoned the accused under section 379 P.P.C. and thereafter transferred the case to another Magistrate, 1st Class, for disposal. On the day fixed for examining the prosecution witnesses the trying Magistrate rejected an adjournment petition filed by the complainant and discharged the accused without examining the prosecution witnesses.

 

Held  :  Discharging  the accused without   I examining   the   prosecution   witnesses  as contemplated under sections 252 and 253 Cr.P.C.   I was illegal. Similar is the case where an accused is discharged for non-prosecution without examining the prosecution witnesses as required under sections 252 and 253 Cr.P.C.

 

Jabed All Vs. Joynal Mridha, (1968) 20 DLR 662

 

8.252(2)  :  Magistrate  to  ascertain the names   of  the   witnesses.   Magistrate  must ascertain the names of the persons who may be able to give evidence for the prosecution and this duty must be performed before the charge is framed. The I mere existence of the list does not relieve the I Magistrate of the duty to ascertain the names of the I witnesses under sec. 252 (2) and he is bound to  I question the complainant or the officer-in-charge of the prosecution about the matter.

 

Ful ChandYs. I Jaran Sk. (1956) 8 DLR 277.

 

S. 252(2)—Prosecutor's statement that he has closed his case. Where before the charge is framed all the witnesses mentioned in the list have been examined and the complainant or the officer-in-charge of the prosecution makes a statement that he has closed his case and has no further witnesses to examine, the Magistrate may treat such statement as tantamount to a statement that there are no other persons acquainted with the facts of the case who may be able to give evidence for the prosecution, and he need not specifically question the complainant or the officer-in-charge of the prosecution on the matter.

 

Ful Chand Vs. Juran Sk. (1956) 8 DLR 277.

 

—No fresh witness can be examined after the charge. When before the charge is framed, the list of persons who may be able to give evidence for the prosecution has been ascertained u/s. 252(2), no fresh witnesses can be examined by the prosecution u/s 256, after the charge is framed and the prosecution can only apply to the Magistrate to examine them u/s 540 under which the Magistrate has a decision in the matter.

 

Ful Chand Vs. Juran Sk. (1956) 8 DLR 277.

 

S.253— The District Magistrate or the Additional District Magistrate has no jurisdiction to set aside an order of discharge made by a Magistrate of the first class under section 253.

 

Mahibur Rahman Vs. Crown (1952) 4 DLR 369.

 

—Discharge    of   accused    when    not

valid—The mere fact that the person alleged to have been cheated was not examined or did not lodge the complaint was not a valid ground for discharging !he accused and holding that no prima facie case had been made out.

 

Dr. Muzaffar AH Vs. Crown (1956) 8 DLR 325.

 

—Accused discharged—Revival of the case without assigning reason is bad in

law. Revival order without assigning any reason is illegal and as such the order must be set aside and the proceedings quashed.

 

Md. Ilossain Ali Chowdhury & others Vs. State (1961) 13 DLR 581', (51 C.W.N. 484)

 

—Accused discharged under section 253— Magistrate has no power to revive the proceeding except upon a fresh complaint or a fresh police report.

 

Nazrul Islam Vs. State. (1983) 35 DLR 32.

 

—Discharge order not based on merits-No bar to take cognizance of the same offence upon fresh complaint. Magistrate passed an order of discharge of a case on account of the absence of the parties and without going into the merits of the case.

 

Held : Such an order is not a final order exhausting the power of the Magistrate and making him functus officio. Such an order is no bar in taking cognizance of an offence upon fresh complaint.

 

Md. Mostafa Chowdhury Vs. Lila Rani Nundi, (1970)22 DLR 199.

 

—Discharge of an accused under section 253 Cr.P.C. merely on the ground of absence of the complainant—illegal.

 

Nur Mohammad Shaikh Vs, Niranjan Mondal, (1971)23 DLR 5.

 

—Magistrate's power under the section: Section 253 of the Code gives power to the Magistrate to discharge an accused in the circumstances provided therein but he must exercise the power judicially after applying his mind ,to the materials and examining the evidence carefully.

 

Dr. Jamshed Bakth Vs. Ameenur Rashid Chowdhury, (1968) 20 DLR 55.

 

—A person discharged of an accusation after submission of final report by the police cannot be tried on the same facts.

Once a Magistrate discharges the accused the whole of the authority granted by the Criminal Procedure Code in respect of the proceedings before him is exhausted and he is not empowered to take any further action in the matter. A final order having been passed the proceedings are closed so far as he is concerned, and he was henceforth functus officioTo hold otherwise would amount to granting him a power of review which power he does not possess under the Criminal Procedure Code.

 

Section 500 of the Code deals with discharge from custody on bail whereas the order of discharge passed by the learned Sub-Divisional Magistrate was —Ss. 253-255   ; based on the police report. It cannot be deemed to be discharge under section 500 of the Code.

 

Md. Sharif Vs. Md, Bahauddin Chowdhury & Stale (1978) 30 DLR 344.

 

—The expression 'discharge' when used in case of final report by the police is not to. be confused with when a discharge order is passed u/s.253 or under 209 Cr.P.C. in chapters 21 and 28 which are now repealed. Discharge under section 253 takes place after cognizance is taken and process is issued.

 

Abdus Salam Vs. State (1984) 36 DLR(AD) 58.

 

8.253(1):—Magistrate is,bound to discharge an accused when the evidence on record, even though unrebuttcd, does not warrant a conviction.

 

Dr. Mofazzal All Vs. The State (1956) 8 DLR 325.

 

8.253(2):—Accused may be discharged before recording evidence if there is no allegation against him in Police charge-sheet. PLD(1956)Sind 262.

—Magistrate can discharge an accused before framing charge but must record grounds there of. The Magistrate can discharge an accused at any stage prior to the framing of charge only after recording his reasons. The reasons may not be of a particular nature but must be in the exercise of his judicial discretion.-The High Court will uphold orders of discharge passed by the Magistrate only m a case where the reasons are clearly sustained by the record and is based on good and proper materials.

 

Shashi Kumar Dey. Vs. Krishan Kumar Dey, (1968) 20 DLR 740.

 

—An order of discharge which is not passed' upon any finding on the merits of the charge against the accused will not stand in the way of taking cognizance upon fresh complaint.

 

Habibullah Vs. Abdul Kader (1977) 29 DLR 338.

 

—Accused may be discharged before recording evidence if there is no allegation against him in police charge-sheet. PLD (1956) (Sind) 262.

 

—Absence of the complainant not always a ground for discharge of the accused. In the present case the complainant applied for time but as his petition was not supported by any medical certificate the learned Magistrate for the reason that the complainant was absent took the view that the charges against the accused persons are groundless and he discharged the accused u/s 253(2) Cr.P.C. The learned Magistrate was not justified to discharge the accused under section 253(2) Cr.P.C. for the reason of absence of the complainant on the day of hearing.

 

All Mia Vs. Sultan Ahmed (1981) 33 DLR 218.

 

S.254:—A charge can be framed even after examining a single prosecution witness.

 

(1956) 8 DLR (W.PLah.) 126.

 

8.255:—In a warrant case there can be no conviction before some evidence-is laid against the accused there of. Mere plea of guilt is not enough for such conviction. The allegations in the present case clearly attracted the provisions of section 145 P.P.C. which provides for a sentence of more than six months, requiring adoption of the warrant procedure there of. In such a case unless some evidence is laid against the accused, mere plea of guilt not enough for conviction.

 

Abdul Quddus Vs. The State, (1968) 20 DLR 554.

 

—"Or has any defence to make" explained. The words "Or has any defence to make" in sec. 255, only mean that when the charge is framed, an opportunity is provided to the accused to state anything in his defence in explanation of the charge framed against him and he is at liberty to take up any plea he likes. But this section does not empower the Magistrate to question the accused if he wished to produce evidence.

 

(1956) 8 DLR (W.P Lahore) 126.

 

Sees. 255-256:—Warrant-case tried summarily—Procedure. The Court trying a warrant case summarily is bound to follow the provisions of sees. 255 and 256 of the Cr. P.Code, as those provisions have not been excluded from the procedure laid down for summary trials.

 

Abdul Hakim Bhuya Vs. Gulabdi (1954) 6 DLR 488, : PLD 1956 (Dae) 108.

 

—It is well-settled now that where there is a joint trial of two offences, one of which is triable as a summons-case and the other as a warrant-case the Court must follow the procedure of warrant-case with regard to both the offence.

 

Abdul Hakim BhuiyanVs. Gulabdi (1954)6 DLR 488 = PLD 1956 (Dae) 108.

 

—Court trying a warrant case summarily is bound to follow the provisions of sections 255 and 256. Where a Magistrate in trying a warrant case in a summary way but did not adopt the course prescribed by section 252 but convicted the accused on his own admission without framing a formal charge and passed an appealable sentence."

 

Held : the conviction is illegal. Warrant cases tried summarily must be tried in accordance with the procedure laid down in the Chapter dealing with warrant cases and the only variations from that procedure which are permitted are the variation prescribed in the Code:

 

Sadar All MondaiVs. State (1959) 11 DLR 52: (1959) PLD (Dae) 488 (27 CWN 923 ; 53 C.W.N. 877 rel).

 

S.255-A:-Previous conviction when need be proved. Where the accused pleads guilty to the charge of previous conviction, that amounts to admission of guilt under section 2551A and therefore the previous conviction need not be proved under section 511 Cr.P.C. Qalim Din and Omar Din. Vs. State (1958) 10 DLR (WP) 69;(10 DLR(WP) 41 and AIR 1925 Lah. 768 dissented.)

 

—The provisions, of this section are satisfied even if the accused does not admit his previous conviction when he is charged therewith but admits the same subsequently when the prosecution is about to produce evidence to prove his previous -conviction.

 

Qalim Din and Omar Din Vs. Slate (1958) 10 DLR (WP) 69; 10 DLR (WP) 41;AIR 1925 Lah. 768 dissented;AIR 1944 (Lah.) 25 follow).'

                  . ,

S.256:—Defence right to cross-examine in section 110 proceeding. An accused in a proceeding under section 110 can ask for a special date for cross-examination of the P.Ws. If that is refused the reason there of should be recorded.

 

Sujat All Paul and others Vs. State (1960) 12 DLR 129=(1960) PLD (Dae) 463.

 

—In the course of his examination under the section the Magistrate asked the accused persons as to whether they would adduce any evidence.

 

Held: The Magistrate had provided the accused persons with the fullest opportunity of adducing defence evidence at the appropriate time.= Therefore, the principle of Mokshed Ali Mollah's case (in II DLR 396) that accused should specifically be asked under section 342 of me Code if they have any defence evidence to adduce has no; application in this case.

 

Ayaj Ali Vs. State (1961) 13 DLR 719 (1962) = PLD (Dae) 223.

 

—Under sec.256 it is only at the close of the prosecution evidence that the accused can be called upon to enter upon his defence and produce his evidence, and this statutory right of the accused cannot be abridged or curtailcdinany manner. If this opportunity is denied the trial will stand vitiated. Md. Ismat Vs. Slate (1965) 8 DLR (WP) 126 = PLD Lah, 862, PLD 1956 Lah, 862.

 

—The duty of a Magistrate under sec. 256 to. ask the accused whether he wishes to cross-examine the witnesses any further is a duty which must be performed, after the plea of the accused has been taken.

 

Abdul Hakim Vs. Gulabdi (1954) 6 DLR 488 : PLD 1956 (Dhaka) 108.

 

—^"Whether he wishes to cross-examine any of the prosecution witncsscs"-Thesc words do not confer right to cross-examine further, when the prosecution witness already had been examined to a very unreasonable length.

 

SK. Kaloo Vs. Stale (1957) 9 DLR 253.

 

—When before the charge is framed, the list of persons who may be able to give evidence for the, prosecution has.been ascertained under sec. 252(2), no fresh witnesses can be examined by the prosecution under section 256 after the charge is framed and the prosecution can only apply to the Magistrate to examine them under sec. 540 under which the Magistrate has a discretion in the matter.

 

Falu Chand Vs. Juran SK, (1956) 8 DLR 277.

 

—When the prosecution case had not been closed and because some prosecution witnesses have been examined after the charge was framed, the conviction cannot be held illegal. The remaining prosecution witnesses, if any, can be examined under section 256, when prosecution case is not closed before the framing of charge,

 

Kasimuddin Vs. State (1957) 9 DLR 220.

—The expression "remaining witnesses for the prosecution" in sec. 256(1) presumably means ramaining witnesses that the prosecution wishes to examine. The prosecution is at liberty to examine whomsoever it pleases until the prosecution case has been concluded with the framing of the charge. The prosecution is not closed until the defence begins.

 

Kasimuddin Vs. State (1957) 9 DLR 220.

 

—In a case of black marketing the accused was tried summarily, but the Magistrate omitted to frame a charge and did not carry out the requirements of section 256 nor was the accused examined in terms of sections 342 Cr.P.C.

 

Held: The omissions will vitiate the trial if the accused are prejudiced thereby. PLD (1956) (Sind) 9.

—Failure to comply with the provisions of sec. 256—Trial vitiated if prejudice caused. PLD (1956) (Sind) 9.

 

—Trial of a warrant Case—Procedure to follow. After framing of the charge under section 254 in a trial of a warrant case it is not the complainant's but the court's duty to recall the prosecution witnesses and therefore, the Court should not acquit the accused simply on the ground of the absence of the complainant or his witnesses. In such a case court must exhaust the process of law to procure the attendance and then proceed with the trial according to law.

 

Mobarak All Gazi Vs. Mukbul Sardar, (1971) 23 DLR 97.

 

Sees. 256 and 257 :—There is no legal bar against the examination of a defence witness merely on the ground that the cross-examination of a prosecution witness had not been completed, particularly in the usual circumstances of a case where the witness concerned was leaving the Court's jurisdiction. PLD 1950 (Bal) 10.

 

—Though this may not involve invasion of the fundamental and substantial right of cross-examination. To meet such a possible contingency of prejudice, the provisions of section 540 of the Code of Criminal Procedure could very properly be invoked in a suitable case.

 

State Vs. Mvi. Md. Jamil, (1968) 20 (SC) 315.

—Right of cross-examination. Right to recall witnesses—New law does not interfere with the accused's right of cross-examination, but affects only a procedural change—Accused not entitled as of right to recall P.Ws.—Application of section 540 Cr. P.Code in suitable cases. Right of an accused person to defend himself includes the right of cross-examination of the prosecution witnesses.

 

The right to recall witnesses already examined before the charge, really matures into a vested right only, when a charge is framed. Where such a contingency arose after the amendment of sections 256 and 257 of the Criminal procedure Code, the view that the fundamental right of cross-examination has not been interfered with by the new law and only a procedural change has been effected which cuts down a further facility for cross-examination not affecting the substance of right has much to commend itself. The new law should not be held even in a pending case and the accused should not be held entitled, as of right, to recall witnesses already examined before the charge. The right of the accused is really one of being tried according to the procedural law current for the time being.

 

The consideration, however, would be pertinent whether the accused in a particular case is likely to suffer some prejudice because he might have, in view of the old law, reserved some important questions in the cross-examination of the witnesses for a stage after the charge, if need be. Such a possibility cannot be entirely excluded, though Ihis may not involve invasion of the fundamental and substantial right of cross-examination. To meet such a possible contingency of prejudice, the provisions of S. 540 of the Cr. P.C could very properly be invoked in suitable case.

 

State Vs. Md. Jamil (1968) 20 DLR (SC) 315.

 

S.257:—Recalling of prosecution witnesses. Principle applies even in summons cases. (1950) PLD(Bal).13

—Production of defence witnesses in court and the responsibility of such production.

 

The accused's contention was that he was prejudiced in his defence as the learned Trying Magistrate had failed to compel the attendance of certain defence witnesses whom the accused wanted to examine in court in his defence.

 

Held: Section 257 Cr. P.Code makes it Obligatory on the part of the Magistrate, except in the case specified therein, to issue process at the instance of the accused to compel the attendance of the witnesses named by him. But if he can produce them in court without the assistance of the court, he is entitled to do so. Under this section, a Magistrate may issue summons upon the defence witnesses on the prayer of the accused and order that the reasonable expenses required for attendance of defence witnesses shall be deposited in court by the accused who wants to examine them.

 

Maziruddin Vs. The State, (1970) 22 DLR 305.

 

S.257(2):—Order to deposit travelling allowance of a witness should state the amount of travelling allowance to be deposited.

 

Md. Hussain Talukdar and others Vs. State (1960) 12 DLR 818: {1961) PLD (Dae) 434.

 

S. 258 :— On a charge framed Court passing no order either of acquittal or of conviction— conclusion is of acquittal.

 

Md. Sajjad Vs. State (1960) 12 DLR (WP) 55'(1960) PLD (Lah) 520.

 

—Warrant case—charge framed— Complainant and his witnesses absent— Acquittal order illegal without writing out a proper judgement on the evidence already on record. When a charge is framed against the accused in a warrant case and when the Magistrate finds that the complainant and his witnesses are absent on the date fixed for hearing, he cannot pass an order of acquittal on account of the absence of the complainant and his witnesses. Whatever he is required to do is to secure the presence of the complainant and his witnesses by legal processes and then proceed with the trial according to law.

 

Magistrate, in acquitting the accused, when the complainant and his witnesses do not appear or cannot be procured after the charge is framedon the adjourned date for cross-examination is to write out a proper judgement on the evidence already on record and then record a finding of not guilty and then acquit the accused, if he finds that the evidence is insufficient or there is no evidence at all to justify the conviction of the accused. Md. Makim Vs. Mozammal lloq and others (1959) DLR 86: (1959) PLD (Dae) 410.

—Charge (in warrant case) framed—Acquittal order on the ground of absence of the complainant (or his witness)—illegal.

 

Govt. of E. Pak Vs. Abu Yusuf(1957) 9 DLR 438.

 

—Acquittal order cannot be treated as discharge order. Upon the charges framed and after taking evidence for both the prosecution and the defence, the trying Magistrate acquitted all the accused.

Against this order the Sessions Judge was moved by the complainant under section 437, Cr.P.Code, who treated the order of the Magistrate acquitting the accused as an order of discharge and set aside the same.

Held : The accuseds having been acquitted of the charges framed against them after regular trial, the Sessions Judge can not circumvent it by treating the acquittal order as an order of discharge.

 

Sultan Khan Vs. Crown (1955) 7 DLR 128.

 

1856

Constitution of Pakistan, 1962 -16

Citation: 2 DLR (P.C.) 151, (199$) 6 DLR 650, (1972) 24 DLR 175, (1971) 23 DLR 5, (1962) 14 DLR 270, (1981) 33 DLR 218, 8 PLD (Kar) 359, (1956) (Sind) 9, (1955) 7 DLR 275, (1956) 8 DLR 230, (1956) 8 DLR 230, (1979) 31 DLR 323, (1984) 36 DLR (AD) 91, (1952) 4 D

Subject: Constitution of Pakistan, 1962 -16

Delivery Date: 2018-09-11

The Court acquitting or convicting must have jurisdiction—Acquittal order by a Court not having jurisdiction is ultra vires. The Magistrate having reached the conclusion that sanction for prosecution was bad and the prosecution was incompetent he ought to have discharged the accused on the ground that he had no jurisdiction to try and not to acquit (as he has done in this case) him. The order of acquittal was, therefore, passed without jurisdiction, and would only operate as an order of discharge.

 

Yusuf All Molla Vs. Crown 2 DLR (P.C.) 151

—The contention was that as the order of acquittal passed by the Magistrate in the first prosecution was not appealed from, they became binding on the expiration of the period of limitation.

 

Held: If the order of acquittal was passed by a Court of competent jurisdiction though wrongly, they would be binding unless set aside in appeal. But if the order was a nullity, there was nothing to appeal against.

 

YusufAll Molla Vs. Crown (1950) 2 DLR (P.C.) 151.

 

—The complainant himself was present in Court on the day fixed for cross-examination of the P.Ws. but his witnesses did not put in appearance whereupon the Magistrate, without waiting for them expunged their evidence and recorded an order acquitting the accused.

 

Held : The order acquitting the accused cannot be maintained. Once a Magistrate on taking evidence has found the existence of a prima facie case justifying the framing of a charge against an accused person, he must try the case through to the end and is not entitled to pass any final order on that charge without taking further evidence.

 

Supdt. and Remembrancecof Legal Affairs Vs. Abu Bakar Khan (199$) 6 DLR 650.

 

S.258(I) : Commitment under section 347 Cr.P.C. When after framing charges under chapter XXI Cr.P.C. the Magistrate at subsequent stage commits some of the accused persons and acquits some other under section 258(1), the order of acquittal passed is under section 258(1) and not under section 209 Cr.P.C.

 

Abui llossain Vs. Amatu Md., (1972) 24 DLR 175.

 

S. 259 :— Absence of the complainant may be a good ground for discharge of the accused u/s.259 in a warrant case at any stage before the charge has.been framed if the offence may be lawfully compounded and is not a cognizable offence. Apart from sections 247 and 259 of the Code, there is no other provision in the Code empowering a Magistrate to discharge the accused merely on the ground of absence of the complainant.

 

Nur Md. Sheikh Vs. Niranjan Mondal, (1971) 23 DLR 5.

 

—Warrant case procedure—Discharge of an accused on the prayer of the complainant or in the absence of the complainant. Where the offence charged is cognizable and non-compoundable iinii triable by warrant procedure an order of discharge by the Magistrate without stating that the case was false but, on the mere statement of the complainant that the case was falsely instituted.is-not justifiable. After taking cognizance of the case the discharge on the ground that the complainant did not want to proceed with the case is not warranted by law.

 

In warrant ease under sec. 259 when the complainant is absent the. Magistrate may discharge the accused if the offence is compoundable and non-cognizable,

 

A.B.M. Enayet Hossa/n Vs. Sekandef Mollah (1962) 14 DLR 270.

 

—Discharge of the accused. Absence of the complainant may also be a good ground for discharge of the accused under section 259 Cr.P.C, in a warrant case at any stage before the charge has been framed if the offence can be lawfully compounded or is not a cognizable offence.

 

Apart from sections 247 and 259 of the Code there is no other provision in the Code empowering a Magistrate to discharge the accused merely on the ground of absence of the complainant.

 

All Mia Vs. Sultan Ahmed (1981) 33 DLR 218.

 

S.260(I)(e) :— Magistrate's power to try summarily offence under sec. 403, P.P.C.—Value of misappropriated property above the limit prescribed under section—Summary trial held, illegal.

 

AsgarAli Vs. State 8 PLD (Kar) 359

5.262   :— In a case of black-marketing the accused was tried summarily but the Magistrate omitted to frame a charge and did not carry out the requirements of section 256, Cr.P.C. nor was the accused examined in terms cfsection 342 Cr.P.C.

 

Held: The omissions will vitiate the trial if prejudice is caused to the accused by the omission. PLD (1956) (Sind) 9.

 

5.263   :Particulars which  should be on record. Though section 263 dispenses with the framing of a formal charge in a summary trial, the record prepared thereunder must specify not only the offence complained of but also the date of the commission of such offence. The specification of the offence in the record should be sufficiently full and clear to give the accused sufficient notice of what he is charged with and what he has to meet. An omission in this respect occasions a failure of justice.

 

Abdul Hanif Vs. Crown (1955) 7 DLR 275.

 

—The requirements of sec.263 in cases of summary trials arc to be strictly complied with.

 

Crown Vs. Abdul Gafur (1956) 8 DLR 230

 

—Judgment to contain a brief statement of reasons—Provisions of section 263 to be strictly complied with.

 

Crwon Vs. Abdul Gafur, (1956) 8 DLR 230.

 

—Particulars required by the section cither not recorded or recorded in an improper manner in columns not meant for them—Immaterial in the absence of prejudice. PLD (1958) (Sind.) 9.

 

—Offence under section 323 Penal Code tried summarily under M.L.R.27 of 1976 following the procedure as provided in section 263 Criminal Procedure Code not bad in law. In the present case the Magistrate summarily tried the offence under section 323 of the Penal Code in accordance with the procedure prescribed for trial of summons case in Martial Law Regulation No.XXVII of 1976. The Magistrate examined 5 witnesses including the complainant, but recorded the depositions of the complainant only and did not record the depositions of 4 other witnesses. The Magistrate, however, stated the particulars of the case as required under S.263 of the Code of Criminal Procedure in the prescribed form. The Magistrate did not frame any charge under section 242 of Cr.P.C. The witnesses were also not examined under section 342 of Cr.P.C. But on consideration of the evidence the Magistrate was satisfied that the prosecution failed to prove the case. He accordingly acquitted the accused persons under section 250(1) of Cr.P.C. The High Court held that in case where no appeal lies, recording the evidence of witnesses or framing a formal charge is not necessary as provided in S.263 of Cr.P.C. and hence the Magistrate did not commit any irregularity or,illegality in acquitting the accused persons by summary trial of an offence from which   no   appeal   lies..  

 

Montu Mobarrakullah (1979) 31 DLR 323

 

Mia    Vs. Ss.263 and 264 :— In case of conviction a brief statement of the reasons are to be given; where mere is no^ conviction but an acquittal, the section docs not require that reason should be given.

 

Md. Maliur Rahman Vs. Asgar All (1984) 36 DLR (AD) 91.

 

S.264 : Omission to frame a formal charge in a case which by virtue of the provisions of section 264, has been tried summarily and in which an appealable sentence has been awarded is an irregularity within the meaning of section 535 of the Cr.P.Codc but it docs not vitiate the trial unless failure of justice has thereby been occasioned.

 

Saffar Malik Vs. Crown (1952) 4 DLR 364.

 

Ss.264 & 265 : Summary trial— whether appealable or not—No formal charge need be framed. Sections 264 and 265 when read with sections 262 and 263 makes it clear that in no summary trial whether it be appealable or non-appealable, need a formal charge in writing be framed. Section 264 (2) specially when read with opening words of section 265, makes it clear that the judgment and judgment alone, embodying as it docs the substance of the evidence and the particulars mentioned in section 263,is the self-contained record of the case.

 

Muslim Mondal and others Vs. State (1962) 14 DLR 595; (AIR) 1926 Lah. 301 followed. 27 CWN 923, 27 Cr.LJ. 1925 dissented.

 

S.264 : Cases tried summarily under section 264—In respect of such cases in which provision for appeal has been provided, not merely the substance of evidence to be embodied in the judgment but substanc'e of evidence should also be recorded to help the appellate Court to dispose of the appeal—Lacuna in the present section 264 Cr.P.Code. Amendment of the section in India referred. Section 264 Cr.P.Code docs not provide for separately recording the evidence of witnesses examined before the Magistrate but says that, while recording judgment, the Magistrate is to embody the substance of the evidence therein.

 

Clause(2) of section 264 provides that such judgment shall be the only record in cases Coming within this section. In a case under the President's Order No.50 of 1972 since the Magistrate is to follow the procedure for the trial of summons cases and that an appeal has been provided against his judgment, both on law and facts and, more specially when he can pass sentence up to 14 years rigorous imprisonment, he should be required to record the substance of the evidence and not merely embody the substance of the evidence in the judgment. It may be mentioned that in India section 264 now stands amended as follows :-

"In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in section 263 and shall before passing any sentence, record a judgment in the case."

 

Daud All Vs. The State {1975) 27 DLR 155.

 

—Judgment under section 264, Cr.P.Codc must contain a sufficient record of the substance of the evidence given in the case. A judgment could not be regarded as sufficiently embodying the substance of the evidence, unless the substance was so recorded that there was no likelihood of any prejudice resulting to the accused when exercising his right of appeal. An omission to refer in a reasonably sufficient manner to any piece of evidence which was of a character likely to effect the decision of any important point involved in the case might easily be an omission likely to prejudice the accused.

 

Daud Ali Vs. The Slate (1975) 27 DLR 155.

 

S.265—All processes to compel attendance of PWs when failed, order of acquittal u/s. 265 is correct.

 

Kamar All Vs. Abdul Manaf. (1987) 39

DLR 319.

 

S.265C : The Sessions Judge must put on record reasons based on materials for discharge of an accused person, failing which the order of discharge liable to b*e set aside.

 

Md. Kalimuddin Vs. Abu Bakar.(1985)37DLR293

 

—Sessions Court on perusal of the record and hearing the parties to discharge t°he accused when materials are not sufficient to proceed against him. Even if new cases are sent to the Court of Sessions upon a charge-sheet or otherwise under section 265C Cr.P.C., it is the duty of the Court of Sessions to discharge those accused against whom it appears to the Court from the record that there is no ground for proceeding after recording its reasons upon a consideration of the materials on record and after hearing both the parties so that frivolous cases and cases of no evidence do not occupy the time of the Sessions Court and innocent persons arc not harassed unnecessarily by being put to the trouble and expense of undergoing a sessions trial.

 

Abdul Sohrab Vs. Giashuddin (1982)34 DLR 238.

 

Ss. 265C and 241A : When the i accused shall, before framing the charge, be discharged. If, before framing the charge, the Sessions Court considers that there is no sufficient ground for proceeding against the accused, when it shall discharge the accused and record the reason for so doing u/s. 265C Cr.P.C. A Magistrate has similar power u/s. 241A Cr.P.C. Md. Taheruddin Vs. Abul Kashem (1985) 37 DLR 107

S.265F : In case when charge against accused has been framed, pleading not guilty, the Sessions Court shall fix a date for examination of witnesses and for compelling their attendance and production of documents. After a charge is framed and the accused pleads not guilty to the charge and claims to be tried, the Sessions Court shall fix a date for the examination of witnesses, and may, on the application of the prosecution issue any process for compelling the attendance of any witnesses or the production of any document or other things u/s. 265F CrP.C.

 

Md. Taheruddin Vs. Abul Kashem (1985) 37 DLR 107.

 

S. 265H : Acquittal—When the accused shall be acquitted. If, after taking the evidence for the j/rosccution witnesses and examining the accused and hearing the prosecution and the defence on the point, the Sessions Court considers thai ihef?«is no evidence that the accused committed the offence, the Court shall record an owier of acquittal u/s.2€5H Cr.P.C.

 

Md. Taheruddin Vs. Abul Kasnem, 0985) 37 DLR 107.

 

—Formerly it was court's duty in warrant cases to recall P.Ws. which could not acquit the accused on the ground of P.Ws. absence. In the olden days the Code of Criminal Procedure maintained a distinction between summons cases and warrant cases. It was the settled law with regard to trial of warrant case that it was \ not the complainant but the Court's duty to recall the prosecution witnesses and therefore the Court . could not acquit the accused simply on the ground of the absence of the complainant or his witnesses.

 

Hi Taheruddin Vs. Abul Kashem 37 DLR107.

 

—Recent amendments have made it obligatory on the Sessions Judge to secure attendance of the P.Ws. whose non-appearance in court, unless all modes are exhausted, will not legalise accused's Acquittal.

 

Md. Taheruddin Vs. Abul Kashem, 37 DLR 107.

 

—Sessions Court may pass an acquittal order u/s 265H, after taking evidence of P.Ws. after accused's examination and hearing of both the parties. Law authorises the Sessions Court to pass an order of acquittal u/s 265H Cr.P.C. only after taking the evidence for the prosecution, examining the accused, hearing the prosecution and the defence and giving a finding that there is no evidence that the accused committed the offence. It postulates that the Sessions Court has to take all possible steps for taking the evidence for the prosecution. It cannot simply acquit the accused persons for default of the prosecution witnesses to attend the court on the date of. trial.

 

Md. Taheruddin Vs. Abul Kashem 37 DR 107.

 

—It is notP.P.'s function to tell the Court that the informant will no longer conduct the case— Sessions Court is to make all efforts to get the P.Ws. in Court before acquitting the accused.

 

Md. Taheruddin Vs. Abul Kashem,l(~1985)'37 DLR{107.

 

—An order of acquittal can validly be passed so far as the provisions of Chapter XXIII of the Cr.P,Code are concerned (which deals with trials before Courts of Sessions) u/s. 265H, which provides that an acquittal shall be passed, if the Court after hearing the prosecutor and defence, considers that there is no evidence to find the accused, guilty.

 

Amena lloque Vs. Rajah All, (1986) 38 DLR (AD).303,

 

—Acquittal order, when in view of S.265{H), can be passed. An order of acquittal under section 265(H) of the Criminal Procedure Code can not be passed unless and until! the evidence of the prosecution is taken, the accused is examined and the defence is heard and the court makes a finding that there is no evidence that the accused committed the offence.

 

Shamsuddin Bepari Vs. Abdur Razzak (1983) 35 DLR 75.

 

—Acquittal order by Sessions Judge invalid when such order is passed on the grpund of P.Ws. absence on the date of trial; u/s. 247, a Magistrate however can acquit an accused if the complainant remains absent on the day fixed for accused's appearance. Md. Taheruddin Vs. Abul Kashem.  (1985) 37 DLR'107

S.265K : Section 265(K) Cr. P. Code provided that on conviction and before passing sentence of punishment the Court shall hear the accused on the question of sentence. This privilege given to the accused was available to him when the trial case was pending in Court. By a subsequent Ordinance (Crl. P. Code 2nd Amendment 37 of 1983), sub-s.(2) of S.265K was deleted. Held : The accused's right u/s. 265(2) remains unaltered by Ordinance 37/83,

 

Sfctfe Vs. Mokbul llossain, (1985) 37 DLR 156.

 

—Deleted by Ordinance 1983—Its effect on a pending trial. (In a criminal trial on a charge u/s. 302/34, Penal Code ending in a sentence of death on an accused) when the case is being heard, that is, in a pending proceeding, the accused on trial acquires a vested right as to the mode of trial to be applied and followed in the case. If by an amendment, a change in such mode of trial is effected when the case is pending, the accused shall be tried according to procedure prevailing before the change is effected; in other words, in a pending proceeding despite the change introduced the accused shall be tried in accordance with the procedure applicable before the amendment.

 

Slate Vs. Mokbul llossain, 37 DLR 156.

 

—After conviction on a charge u/s. 302/34 where punishment inflicted is the minimum, i.e. transportation for life, right available to the accused u/s. 265K (2) no longer relevant, because sentence imposed is the minimum one under the law.

 

State Vs. Mokbul Hossain, 37DLR 156'.

 

S.265K(2) : Accused's right to be heard before sentence of punishment is passed, not affected by deletion of s. 265K(2) (General Clauses Act, X of 1887 sec. 5). In the absence of anything -in Ordinance XXXVII of 1983 under which sub-section (2) of section 265K was omitted indicating a different intention it is clear that in the legal proceeding which was pending, a right and privilege had accrued to the accused to be heard on the question of sentence and the omission, or, for the matter of that, the repeal of sub-section (2) of section 265K by Ordinance XXXVII of 1983 has not affected this vested right of the accused, and legal proceeding that was pending shall be continued as if the repealing Ordinance has not been made.

 

Slate Vs. Mokbul Hossain, (1985) 37 DLR 156.

 

S.271 : Trial before the Sessions Court—charge for the trial. Unless and until there is commencement of trial before the Court of Sessions as provided under section 271 and unless a charge as framed by the committing Magistrate is approved or modified by the Sessions Judge under section 226, of the Code, there is no charge which can be deemed to be a charge for the purpose of a sessions trial.

 

Superintendent and Remernhrancerof Legal Affairs Vs. Aminul lluq (1960) 12 DLR 324 : (I960) PLD (Dae.) 783.

 

S.271(1) : A trial really commences when the formality of S. 271(1) is followed after the accused appears or is brought before the court. The deleted section 271 of the Code of Criminal Procedure reads as follows: "(I) When the court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried". Thus, according to section 271(1) of the old Code of Criminal Procedure, a trial really commences when the formality of section 271(1) of the Code of Criminal Procedure is followed. In the present case the trial commences after about two years of the promulgation of the Ordinance and as such it cannot be said that the trial has been vitiated for not complying with the old provision of section 268 of Code of Criminal Procedure.

 

Mohitullah Vs. The State, (1983) 35 DLR 322

1857

Constitution of Pakistan, 1962 -17

Citation: (1967) 19 DLR (SC) 242, (1963) 15 DLR (WP) 76, (1954) 6 DLR 569, (1953) 5 DLR(FC) 1, (1956) 8 DLR 156, (1961) 13 DLR 911, (1959) 11 DLR 2581(1959), (1963) 15 DLR 517, (1963) 15 DLR 517, (1954) 6 DLR (FC) 38, (1958) 10 DLR 222, (1956) 8 DLR 269, (1956)

Subject: Constitution of Pakistan, 1962 -17

Delivery Date: 2018-09-11

S.271:— When the trial commences in case of session's trial. It is when the accused is brought before the Court to stand his trial, that the trial can be said to commence (and not earlier to that as it is clear from section 271, Criminal Procedure Code).

 

 

Mohammad Alam & others Vs. The State, (1967) 19 DLR (SC) 242.

 

S.271(2):— Plea of guilty, if amounts to an admission of guilt. It is the duty of the Court in such cases to find out whether the act complained of constitutes an offence according to law. Unless the facts averred in the charge amount in law to be an offence, the pica cannot amount to an admission of guilt under the section.

 

M. Anwar Vs. Saadal Khayali (1963) 15 DLR (WP) 76.

 

S.274:— Tried with less than the required numbers of jurors. Where an accused person charged with an offence punishable with death has been tried with scvpn jurors, it must be assumed that it was not practicable to have nine jurors and that the provisions of sec. 274 have been Complied with, unless there is an indication on the face of the record itself or Ihcrc is some other material before the Court which leads to the conclusion that it was or might have been practicable to have the jury composed of nine jurors rather than seven.

 

Crown Vs. Osimuddin Mondal (1954) 6 DLR 569.

 

— If a Judge proceeds with the trial with seven jurors, it must be assumed, in the absence of anything on the record to show that it was practicable to have more than seven jurors, that section 274 was complied with. 53 CWN.

 

S.276: — Of the 12 jurors summoned, 7 attended the Court: out of them 5 jurors were chosen by lot course of justice is excluded by the fact that, having been cited in the prosecution calendar, the witness was available at the trial to be called and examined by the defence, if they thought it necessary.

 

Allah Yar Vs. Crown (1953) 5 DLR(FC) 1.

 

—Prosecution witnesses to , be in attendance for cross-examination—Crown is not bound to call before the Court a witness who, according to the prosecution, will not speak the truth—Witness, however, should be in attendance for defence to examine him, if so advised. J PLD (1953) (Lah.) 63.

 

S.287:—Accused's statement must be tendered—Provisions of section 287 do not make it obligatory that the accused must be examined under section 209 Cr.P.C. If the examination of the accused is recorded under sec. 209, the statement recorded must be tendered by the prosecution and taken as evidence.

 

Mar jam Bewa Vs. A limuddin (1956) 8 DLR 156.

 

S.288:—The deposition of witnesses if otherwise admissible under this section, ought to have formed part of the record.

 

State Vs. Ain Khan (1961) 13 DLR 911.

 

—Session Judge's discretion as regards evidence recorded under section 145 Evidence Act: The discretion of the Sessions Judge while considering the desirability of treating as evidence the deposition of a witness recorded under chapter XVIII of Criminal Procedure Code, when such witness is produced and examined before him is wide enough not to be circumscribed by the limitation or consideration of section 145 of t'he-Evidence Act.

 

It is true that when such evidence is sought: to be treated as part of the record of the Court of Sessions only for the purpose of contradiction, as indicated in section 145, then it is a case purely within the ambit of that section and as such it cannot but be treated under section 145 of the Evidence Act.

 

State Vs. Ain Khan (1961) 13 DLR 911.

 

—A certain statement made by some prosecution witnesses was not pul in under section 28$ by the defence in the Sessions Court. Having regard to the facts and circumstances of the case, on a prayer by the defence, the High Court in appeal looked into and considered that statement. The evidence in the Session Court was that the accused ordered "to finish" the deceased. Before the Committing Court some witness said that the accused gave order to beat the deceased. This evidence before the Committing Court was not put in under section 288 before the Sessions Court. It was the evidence that the High Court looked into in the interest of justice.

 

State Vs. Bahar Alt and others (1959) 11 DLR 2581(1959) PLD (Dae.) 832.

—Section 145 of the Evidence Act must be applied to admit evidence under section 288 Cr.P.C. The question was can the evidence of a witness recorded under chapter XVlll of Cr. P.C. who is produced and examined in the Sessions Court, be treated as substantive evidence under section 288 of the Code without first complying with the provisions of section 145 Evidence Act

 

Held: The preponderance of judicial opinion is that the procedural provisions of section 145 Evidence Act are to be complied with as condition precedent to admission of evidence under section 288 of the Cr.P.Codc.

 

Chhota Gada and others Vs. State (1963) 15 DLR 517.

 

—Only such portion to which attention of witness is drawn is evidence and no other contrary views of the Division Bench in the case of the State Vs. Ain Khan, 13 DLR 911 over ruled,

 

Chhota Gada and others Vs. State (1963) 15 DLR 517.

 

—Purpose for which the previous statement may be used. Previous statement recorded under Chapter XVIII of the Code may be used for any of the three purposes, namely, to corroborate the present statement under section 157 or to shake the credibility of the witness under section 155 (3) of the Evidence Act or to treat it as substantive evidence under section 288 Cr.P.C. In the latter two cases the statement is brought in only because the present statement is in conflict with it but while in the first of these two it is done to show that the witness is unworthy of belief, in the second it is done so that the former statement can be acted upon in preference to the present.

 

Chotta Gada and others Vs. State (1963) 15 DLR 517.

 

—The view held in.13 DLR 911 that the application of section 145 Evidence AcJ circumscribes the discretion of the Sessions Judge conferred upon under section 288 Cr.P.C. is not correct. (1961) 13 DLR 911 dissented from.

 

Chhota Gada Vs. State (1963) 15 DLR 517.

 

—While considering the question of admission of evidence under section 288, application of section 145 Evidence Act is indispensable.

 

Chotta Gada Vs, State (1963) 15 DLR 517.

 

—The words "subject to the provisions of the Evidence Act in section 288 of Cr.P.C." arc meant to cover all the provisions of the Evidence Act including those of section 145 of the said Act.

 

Chhota Gada Vs. State (1963) 15 DLR 517.

 

—Discretion to prefer the statement before the committing Court. While the Court has discretion to prefer the earlier statement of a witness which has been transferred under section 288, to his later statement at the trial, this discretion must be exercised with great care, on a careful scrutiny of the two conflicting statements in relation to all other evidence and circumstances appearing from the record and not on mere surmise or conjecture as to possible reasons for the witness having resiled from his earlier statement.

 

Lai Vs. Crown (1954) 6 DLR (FC) 38.

 

—In considering whether the evidence of the approver given before the committing Magistrate was to be preferred to that which he gave In the Sessions Court, the Court was entitled 'to have regard to the fact that very soon after the occurrence he had made a statement in the same sense as evidence which he gave before committing Magistrate.

 

Bhabani Shah Vs. State (1950) 2 DLR(FC) 39 (42-43).

 

. —Evidence before the committing court put in under section 288, may be preferred to that deposed in the Sessions Court.

 

State Vs. Fashiruddin (1958) 10 DLR 222.

 

—Duly    recorded—meaning    of—The words "duly recorded" in section 288, carry wider significance than the words "taken in accordance with law" is section 80, Evidence Act. Failure to read bver and explain the evidence, in the presence of the accused-Held, evidence not "duly recorded".

 

Wazed Ali Vs. State (1956) 8 DLR 269.

 

—A statement under section 154 can properly be used to enable the jury to decide whether the evidence put in under section 288 or the evidence in the Sessions is to be preferred.

 

State Vs. Jharu Md. Monal (1956) 8 DLR 404.

 

—Witness not produced in Court—his earlier statement not admissible. There is no provisions in the Cr.P.Code which allows a Sessions Judge to take into the Sessions file as evidence under section 288, the evidence of a witness in the committing Court when that witness is neither produced nor examined in the Court of Sessions.

 

Sultan Ahmed Vs. Crown (1950) 2 DLR 30.

 

— "Becomes evidence for all purposes." If the previous statement is the deposition before the committing Magistrate and it is put in under section 288 so as to become evidence for all purposes, the jury may in effect be directed to choose between the statements.

 

Suruj Miah Vs. Crown (1950) 2 DLR 114.

 

—One object of treating the previous statement as evidence would be to contradict the statement of a witness made at the Sessions trial and section 145 which is a part of the Evidence Act should, on the language of section 288, come in to play. Aflof the proper procedure has been followed and the Sessions Judge has in his discretion admitted the previous statement under section 288 as evidence at the trial it may be treated as evidence in the case for all purposes.

 

Fateh Beg Vs. Crown 2 PCR 150.

 

—Where evidence taken in the committing Court has been admitted under section 288, it may be used as evidence for all purposes and the jury may, if they so like, prefer that to the evidence given in the Sessions Court.

 

Asgar Vs. Slate (1957) 9 DLR 512.

 

—When & to what extent discretion to allow previous statement be exercised. It

is true that in certain exceptional cases section 288 enables the Court of sessions to exercise discretion and allow the entire evidence before the committing Magistrate to be used as substantive evidence but that does not mean that the Court can do so indiscriminately or independently of the provisions of the Evidence Act.

 

It is only in such cases, where a witness resiles entirely or to a great extent from his previous statement or where he has forgotten a great deal of what he said previously, that the discretion under section 288 should be exercised. Further, section 288 expressly mentions that the evidence put in under section 288 is to be treated as evidence only if it complies with the provisions of the Evidence Act. (7954; 6 DLR The Crown Vs., Mongal Khan 490 .

 

—Previous statement to be let in for limited purpose—entire previous evidence when becomes substantive evidence. If the

previous statement is let in, it is lei. in only for a limited purpose, namely, for the purpose of contradicting but the previous statement cannot be used as substantive evidence. But if the entire previous statement made before the committing Court is admitted in the Court of Sessions under section 288, it becomes substantive evidence. Therefore, the Court should be extremely cautious in exercising its discretion under section 288, for, the moment the entire evidence is let in under section 288, the whole of such evidence before the committing Magistrate becomes substantive evidence and it can be used as such.

 

The Crown Vs. Mongal Khan (1954) 6 DLR 490.

 

—The statement of a witness before a committing Court transferred to the Sessions Court under section 288 becomes substanlilivc evidence in the case. Its value is the same as that of the statement made in the Sessions Court itself.

 

Sarja Vs. Crown (1954) 6 DLR (WP) 188.

 

—Statement of prosecution witness admitted under section 288, containing confession said to

have been made while, in police custody by an accused is not saved by section 27, Evidence Act.

 

State Vs. Fashiruddin (1958) 10 DLR 222.

 

—Witness to be confronted with his previous statements—The evidence recorded by the committing Court cannot be used in the Court of Sessions, as evidence under section 288 unless the witness is confronted with his previous statement as required by section 145 of the Evidence Act.

 

Fateh Beg Vs. Crown (1950) 2 DLR 150.

 

—Witnesses resiling from statements before committing Magistrate—Statements transferred to the file of Sessions Judge—Corroboralions by statements under sections 164 Cr, P.C. should not have been excluded from corroboration at the sessions trial. Baloo Vs. Crown 2 PLD (BJ) 73.

 

—Witness confronted by prosecution with the statement made before the committing Magistrate and a note made that she had not exonerated the accused in that statement. Statement was then transferred to Sessions record and treated as evidence; Court added a note that the counsel for the accused had been warned in this respect.

 

Held: this was substantial compliance with section 288. Punnun Vs. Crown PLD (1964) (Lah) 182.

—Presence of accused not necessary at the time of order for transfer of witness's statement before the committing Magistrate to Sessions file. PLD (1964) (Lah.) 218.

 

S.288 :—Statement under section 288 Cr.P.C. though a piece 'of substantive evidence cannot be unreservedly accepted with implicit faith. Once the statement of a witness recorded by the Committing Court is admitted into evidence under section 288 Cr. P.C., it becomes a piece of substantive evidence for all purposes with no difference with any other piece of substantive evidence led in the case. If the statement is found to be genuine and true, it can form a sound basis for conclusion of guilt or innocence of an accused person. There is no rule of law and none need be imported, that while such a statement is believed to be trustworthy and honest, it must still require corroboration to make it acceptable and relied upon. However, as a rule of prudence, the superior Courts in this country have laid down from time to time that since a witness who makes one statement before a Committing Court and conveniently changes it at the trial stands self-condemned as a liar. His former statement transferred under section 288 Cr. P.C.cannot be unreservedly accepted with implicit faith and hence the need for its corroboration by some independent source. Each case, however, has to be decided on its own facts and each statement transferred in a case under section 288, Cr. P.C. has to be adjudged on its own merits in the context of all the circumstances of the crime.

 

Md. Ahmed Vs. The State, (1970) 22 DLR (SC) 120.

 

—Approver's confessional statement, his evidence before the committing Court and the session trial, all tallied together—In cross-examination he resiled from his confessional statement—Prosecution entitled to refer to his evidence in the committing court under section 288 CnP.Code without reference to section 145 of the Evidence Act.

 

Ahmed Din Vs. The State, (1970) 22 DLR (SC) 1.

 

—Omission by witness to stale all matters in the committing court not fatal—In the committing Court a witness is not examined on all details and he may omit to mention matters on which he was not asked—Evidence of a witness cannot be disbelieved merely due to such omissions.

 

The Slate Vs. Badiuzzaman, (1973) 25 DLR 41.

—In the present case, the approver's confessional statement, his statement in the committing court and the deposition in examination-in-chicf at the trial arc in complete accord in essential particulars. There does riot appear any contradiction bctwee'n his statement in the committing court and the statement made by him in examination-in-chicf at the trial. It was only in course of cross-examination that the approver retracted his confession and resiled from his previous statement in the committing Court. When there was no contradiction between his previous statement in the committing court and his deposition in examination-in-chicf in the trial court, the prosecution was not in need of complying with the formalities prescribed by section 145 of the Evidence Act and was entitled to use his statement in the committing court as transferred under section 288, Criminal Procedure Code, for the purpose of corroboration of his deposition in examinalion-in-chicf at the trial under section 157 of the Evidence Act.

 

The Slate Vs. Badiuzzaman, (1973) 25 DLR 41.

 

—Both Courts below appear to stress that the facility afforded by section 288, Cr. P.C., is not to be mechanically employed, and that it still remains for the trial Court to consider the case in all its aspects to determine whether the earlier statements, which were not recorded in its presence were preferable to those, which the trial judge himself saw and heard the witnesses making. They have nevertheless failed to examine the question what reason could there be for these four witnesses to introduce variations into their statements, which have the effect of casting doubts upon the reliability of their identification of the accused. They have not examined for instance the extent of the opportunity for identification of the assailant that was available to each of the witnesses.

 

Alim Vs. The State", (1967) 19 DLR (SC) 268.

 

—Motives for resiling from the statements made in the committing Court analysed. Statements about recognition of the culprit made in the committing Court resiled from in the Sessions Trial by the witnesses—Question of resiling in such cases rcquiresto be examined in all its bearing when circumstances exist favouring the probability that the witness was not sure that he actually recognised the culprit and in such a case the court may accept the subsequent evidence as more probable—In such cases it is safer to accept the subsequent statement and give the accused benefit of doubt.

 

Alim Vs. The State, (1967) 19 DLR(SC) 268.

 

—Evidence of a witness declared hostile given in the committing court put in u/s 288 Cr. P.C. The Trial Court can however prefer the evidence given before it.

 

Yunus Alt Vs. State (1982) 34 DLR 208.

 

Compliance with s. 145 of the Evidence Act indispensable when an evidence is put in u/s 288 Cr.P.C. Entire evidence given in the Trial Court as also the portion referred to in s. 145 Evidence Act, is before the Court for adjudication.

 

Yunus All Vs. State (1982) 34 DLR 208.

 

—Evidence given at the preliminary enquiry may at the discretion of tin presiding Judge be treated as evidence in the case subject to provisions of sections 145 and 157 of the Evidence Act. The committing court's evidence can be transferred to the Sessions court at the discretion of the presiding Judge and that evidence can be treated as an evidence in the case.

 

It is an enabling power which has been conferred upon the presiding Judge for bringing on record the evidence of witnesses which was recorded under chapter XVIII before the committing Magistrate and the law directs that such evidence be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act. Application of section 145 and 157 of the Evidence Act will depend on the purpose for which the evidence of the committing court is sought to be transferred to the Trial Court. If it is for contradiction, S-145 has to be complied, but for corroboration S.I57 will come into play.

 

Alahar All Vs. Stale (1979) 31 DLR (AD) 227.

 

—Provisions of s. 288 will be applicable even though this section is repealed by Law Reforms Ordinance (XLIX of 1978) in respect of cases pending trial in Courts at the date when that Ordinance came into effect.

 

And therefore the provisions of s. 288 will apply for allowing the prosecution to put in the prosecution witnesses' statements made before the committing Court.

 

Nazumuddin Vs. State. (1983) 35 DLR 339.

 

— (As Amended by Ordinance 24 of 1982) S.339B (read with s. 35(c) of Ordinance 24 of 1982.

 

In view of section 35 (c) of the Ordinance No. 24 of 1982 the provision for disposal of a pending case within the time mentioned there is only directory and therefore failure to observe the time limit has no effect on the proceeding.

 

Channu Mi(i Vs. Stale. (1983) 35 DLR 275.

 

—In terms of section 35 (c) of the Ordinance 24 of 1982, in rqspecf of the case which has started after Ordinance 24 of 1982 came into effect within the time allotted if the trial of such a case is not concluded, further proceeding of the case shall be stopped, and the accused be released.

 

Channu Mia Vs. State. (1983) 35 DLR 275.

 

—Provision of s. 145. Evidence Act must be complied with, if evidence of a witness is treated as evidence u/s.288, Cr.P.C. The power of bringing in evidence u/s. 288 should be exercised on a sound ground.

 

The power-of the trial court under section 288 Cr,P.C. being in derogation of the general principle that a Court can only act on the evidence given before it, the decision to let in the previous deposition of a witness under section 288 Cr.P.C. has to be arrived at on a sound and reasonable ground by the trial judge.

 

When the Judge himself wants to use committing court's evidence—Procedure he should follow. Before a Judge can use the committing court's evidence given by a witness, he is bound to let his intention or the possibility that he may do so, be known to the accused and to the prosecution; and he is also bound to afford the accused and Ihe prosecution an opportunity for testing such statement by cross-exarnination or otherwise.

 

Mina Bibi alias Arrtena Bibi Vs. State (1983) 35 DLR 243,. '"

 

S.289:—When   accused   is  prejudiced. Failure to ask the defence whether it wished to adduce any defence evidence prejudices the accused. The mere question to the accused "have you brought any witness in your defence ? Is not the proper way of eliding whether the accused wanted to adduce any defence evidence.

 

Shamsuddin Ahmed Vs. Slate fl959) 11 DLR 508).

 

1858

Constitution of Pakistan, 1962 -18

Citation: (1955) 7 DLR (FC) 139, (1957) 9 DLR 312, (1960) 12 DLR (WP) 55: (1960) PLD (Lahore) 520, (1957) 9 DLR (PC) 612, (1959) 11 DLR (SC) 365: (1959) 11 PLR (SC) 1096, (1957) 9 DLR (PC) 353, (1960) 12 DLR 438=(1960) PLD (Dae) 955, (1959) 11 DLR 55: (1959) PLD

Subject: Constitution of Pakistan

Delivery Date: 2018-09-11

Sfe289 & 290:—Accused declaring not to lead evidence cannot claim to do so under section 290. The provision forselcction in section 289, is of a definitive nature and once an  accused person has made a choice and declared that he will not lead evidence, he cannot rely on anything contained in section 290 for claiming a separate and supplementary right to adduce evidence.

 

Lalan Vs. Crown (1955) 7 DLR (FC) 139.

 

S.289(1):—The statement under section 289(1) that no defence evidence would be adduced was made not by the accused but by his advocate.

 

Held: This was a contravention of the statute but it is clear that it is an irregularity which in the absence of prejudice does not vitiate the trial.

 

Lalan Vs. Crown (1955) 7 DLR (FC) 139.

8.289(2):—Under section 289, if the Court considers that there is no evidence that the accused committed the offence, it may, in a case tried by a jury, direct the jury to return a verdict of not guilty.

 

Abdul Noor Vs. State (1957) 9 DLR 312.

 

8.289(4):—"Shall call on the accused to enter on his defence." The expression "shall call on the accused to enter on defence" in section 289(4), does not imply that the accused should be asked once again whether he intended to adduce evidence in spite of the fact that he had stated that he would not do so when questioned under section 298(1) at an earlier stage.

 

Lalan Vs. Crown (1955) 7 DLR (FC) 139.

 

8.290:—Under section 290, there is no duty cast on the Court to ask the accused if he means to adduce evidence, That has to be done only under section 289)1).

 

Lalan Vs. Crown 7 DLR (FC) 139.

 

S.291:—Accused cannot ask the Court of Sessions to summon witnesses not included in his list of witnesses before the committing Magistrate. He can examine, however, witnesses, who arc present in Court.

 

Muhammad Sajjad Vs. State (1960) 12 DLR (WP) 55: (1960) PLD (Lahore) 520.

 

S.293:—View of the scene of occurrence by the jury. View of the scene of occurrence by the jury which was attended by the witnesses who deposed in Court, — the purpose being to enable the witnesses to demonstrate to the jury as to how they witnessed the occurrence they deposed to—Perfectly valid in law when such witnesses are available for cross-examination and when they made no communication to the jury. Accused person does not choose to attend the view of his own accord. He cannot complain of prejudice.

 

Keramat Vs Queen (1957) 9 DLR (PC) 612.

 

S.297:—Mis-direction—Evidence was that the deceased went out with the accused and later on was seen in his (accused's) company after which he was not seen alive—Judge asking the jury to convict if they believed evidence is a complete misdirection.

 

Samsuddin Sarker Vs. State (1959) 11 DLR (SC) 365: (1959) 11 PLR (SC) 1096.

 

—Repeated comments by the Court on the failure of the accused to give evidence when he has told the whole story amounts to grave misdirection.

 

Cyril Wangh Vs. King (1957) 9 DLR (PC) 353.

 

—Direction regarding dying declaration to the jury. The Sessions Judge should have told the jury that although there is no legal bar to the jury basing the conviction of the appellants on the dying declaration but prudence requires that there should be corroboralion of such dying declaration inasmuch as it is not made on oath and not subjected to cross-examination. It has now become a well-established practice to administer to the jury some caution as stated above with regard to the evidentiary value of the dying declaration.

 

Samar Mallik Vs. State (1960) 12 DLR 438=(1960) PLD (Dae) 955.

 

—When non-direction amounting to misdirection. The evidence was to the effect that in the course of a search some instruments for counterfeiting coins were found in the south-facing hut of the accused persons. The evidence did not disclose that the accused alone resided in that hut and no person except himself was in exclusive possession of the hut. The Sessions Judge while charging the jury did not draw their attention as to whether the accused was in exclusive possession of the south-facing hut from which the incriminating articles were recovered.

 

.Held : This non-direction in the charge amounts to a mis-direction vitiating the charge.

 

Abdul Hakim Vs. State (J959) 11 DLR 38: (1959) PLD (Dae)

379.

 

—Re-charging the jury. When Sessions Judge, while re-charging the jury, dealt vrith facts in addition to the explanation of law, he should have recorded what he had said to the jury. But, where having found that the law explained by him has not been understood by the jury the Judge once again merely explained the sections of law to the jury, there is no need to have the same recorded. Syed AH Matbar Vs. State (1959) 11 DLR 55: (1959) PLD (Dae) 376.

 

—Child witness and caution to the jury. Judge should caution to the jury that a child witness is prone to draw upon his imagination and is also capable of being easily tutored. Some sort of caution should be administered to the jury in order to help them to appraise the evidence of such witness for themselves.

 

Abdul Gani and others Vs. State (1959) 11 DLR 338: (1959) PLD (Dae) 944.

 

—Effect of inadmissible evidence placed before the jury—verdict of guilty, unsafe to rely on. Investigating officer, examined as a defence witness, made some statements in favour of the defence. Prosecution thereupon cross-examined the Investigating Officer which the Sessions Judge allowed, but, in his charge to the jury, he told the latter that the evidence of the Investigating Officer in cross-examination by the prosecution was inadmissible in law and asked them not to be influenced by the same.

 

Held: It must be remembered that the jury are laymen and when this evidence had been placed before them it would be impossible for them to shake off the effect of those evidence inspilc of the warning given by ihc learned Judge. The trial has certainly been vitiated by violation of the provisions of sec. 162 Cr.P.Codc and that jury might have been misled by those inadmissible evidence.

 

Anis Mondal Vs.State (1958) 10 DLR 459.

 

No    evidence—accused    must,   be

acquitted. No offence has been made out against an accused even if the evidence is accepted as true. In such a case, the Judge must direct the jury to return a verdict of not guilty.

 

Abdul All Vs. State (7958) JO DLR 169.

 

—Charge must point out the danger of acting on the uncorroborated testimony of a prosccutrix. It is extremely dangerous and permissible only in exceptional cases to convict a man of sexual offence on the uncorroborated testimony of the complainant. The rule must be properly emphasised in the charge to the jury. The corroboration must be by independent evidence, coming from another person altogether. The evidence of some person as to what the girl said to him is no corroborative evidence within the meaning of the rule.

 

Rashid Ahmed Vs. State (1958) 10 DLR 532.

 

—Bare reading out the witnesses' depositions —Not a compliance with the provisions of the section. A mere reading out of the deposition of the witnesses to the jury does not satisfy the requirements of this section. In summing up the Sessions Judge should piece together all facts relevant to each vital point and present them in an intelligible manner to the jury. That is a more difficult method but that is the method contemplated by law and must be followed,

 

Elahi Baksh Vs. Crown (1955) 7 DLR 358.

 

—Omissions and discrepancies—Jury's attention to be drawn—The Judge should draw the attention of the jury to omissions and discrepancies in the evidence of witnesses so that the jury might have an opportunity to decide whether the witnesses should be believed or not.

 

Mir Amir llossain Vs. Crown (1954) 6 DLR 518.

 

—Charge to the Jury—Failure to ask the accused in his examination, under section 342, about his absconding after the occurrence, but asking the jury that they should consider his conduct after the occurrence causes prejudice.

 

Abdul Aziz Vs. State (1957) 9 DLR 40.

 

Summing up proper way-S.297 provides that in the case tried by jury, when the case for the defence and the prosecutor's reply, if any, arp concluded, the Court should proceed to charge the jury summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided.

 

Elahi Baksh Vs: Crown (1955) 7 DLR 358.

 

—While summing up the case to the jury, it is the duty of the Judge to sum up the case both for and against the prosecution in such a manner as to assist the jury in arriving at a right decision upon all important facts in the case. It is not sufficient merely to recount the evidence. The Judge must assist the jury in weighing the evidence, and must see to it that all essential facts and circumstances arc put into the scales of justice on the proper side of the balance.

 

Bahadur Khan Vs. Crown 2 PCR 54.

 

Explanation of law—In a jury trial it is the duty of the Judge to give a direction upon the law as to make them understand the law as bearing upoir the facts and to enable them to decide the point at issue. Mere statement by the Judge that he has read over and explained the relevant sections to the jury is not sufficient compliance with the requirements of law.

 

Tunya Vs. Crown (1949) 1 DLR 138.

 

—Evidence in the committing Court different from that in the Sessions Court. In a Sessions case, where a prosecution witness was declared hostile and cross-examined by the prosecution because the witness had mentioned the names of all the accused in the committing Court but omitted the names of two of them in the Sessions Court and the Assistant Sessions Judge charged the jury saying that the deposition of the witness should nof be entirely discarded and that they should consider the statement of the witness at the trial and in the committing Court and discard those portions which were inconsistent with his previous statement and with the other evidence and facts and circumstances of the case.

 

Held: These directions could not be considered as amounting to misdirection leading to a failure of justice.

 

Suruj Mia Vs. Crown (I960) 2 DLR114.

 

S.297    :     Previous     statement—its value. Whether the previous statement be admitted by the witness or proved in spite of his denial under section 145, Evidence Act. the proper direction is that before relying on the evidence given by the witness at the trial, the jury should take into consideration the fact that he made the previous statement but that they must not treat the previous statement as being any evidence at all against the prisoner of the facts therein alleged.

 

Suruj MianVs. Crown (1949) 2 DLR 114.

 

—Witnesses withheld—effect of. When persons specifically mentioned in the F.I.R., as also those who were closer neighbours than the witness examined were not examined, the Sessions Judge correctly explained to the jury that under the law they were entitled to draw a presumption that the evidence which a party intentionally withheld would, if produced, go against the party and whether they would draw that presumption or not in the particular case before them depended entirely on them.

 

Eajral All Vs. Crown (1949) 1 DLR 42.

 

Incriminating circumstances

direction to the jury. In the absence of positive evidence that the accused received the money in respect of each of the drafts, the Sessions Judge merely pointed out some items of circumstantial evidence without specifically directing the jury that circumstances of the case should be incapable of explanation of any other hypothesis than the guilt of the accused.

 

Held : The Sessions Judge should have given specific direction to the jury.

 

Sailendra PrasadBose Vs. Crown (1950) 2 DLR 349.

 

—Normal procedure, when charging the jury. The normal procedure in a sessions trial is for the Sessions Judge to invite the jury to consider the prosecution case and to make up their minds whether they are prepared to rely on the evidence adduced in its support. If they are not so prepared they must acquit the accused. It is only if they arc satisfied that they can accept the prosecution story that they are to consider what answer the accused has made to the charge lodged against him. Gopal Chandra Sen Vs. Crown (1951) 3 DLR 196

 

—It is wrong for a Sessions Judge to address the jury more on the possibilities and probabilities of the case than on its difficulties and discrepancies. Gopal Chandra Sen Vs. Crown (1951) 3 DLR 196.

—The Sessions Judge while charging the jury in a trial in which 8 persons were charged under sections 147 and 148, Pakistan Penal Code and in which the defence set up a plea of the exercise of right of private defence, was guilty of a serious misdirection when he told the jury that if they found the accused exceeded the limit of the right of private defence they would be guilty. It was wrong to put to the jury in this bare form without any further direction as to the section under which the accused would be guilty provided the jury found that they exceeded the right of private defence. Naimuddin Vs. Crown (1954) 6 DLR 120

 

—The Sessions Judge is guilty of a grave error when he fails to caution the jury that the value of identification by a witness in the Court of Sessions that the. property was the stolen property is considerably weakened in view of the fact that the witness was never called upon to identify the said property when they were placed in a test identification parade nor was the witness asked to identify them in the Court of the committing Magistrate. Jamser Sarkar Vs. Crown (1952) 4 DLR 302; 2 PCR 153.

 

—Theoretical discourse on various sections of the Code involve without reference to their practical application to the facts of the case leaves the jury in a state of bewilderment. Rabbani Vs. Crown (.1950) 2 DLR 73.

 

—Bare statement to the jury that if the 8 accused persons exceeded the right of private defence on a charge under sections 147 and 148.P.P.C., they would be guilty, without further explaining that in that case they would be guilty not under sections 147 and' 14'8 but individually amounts to misdirection. Naimuddin Vs. Crown (1954) 6 DLR 120.

 

—Judge's direction—discrepancies— Omission to point out—Once it is found that the jury's mind was influenced by misdirection, it is not safe to conclude that the jury might find guilty {on other independent evidence. Mir Amir Ilossain Vs. Crown (1954) 6 DLR 513.

 

—After the identification of the articles at the thana before the police, the value of evidence regarding the -'identification before the Court is practically nil. Omission to direct the attention of the jury to these matters causes failure of justice. Mir Amir Hossain Vs. Crown (1954) 6 DLR 518.

 

—Where the depositions of witnesses were taken down'under section 512 Cr.P.C,,and ihe prosecution subsequently put them in the Court of Sessions under section 33, Evidence Act, the learned judge while allowing them to be used as evidence, failed to give caution to the jury that witnesses whose evidence in the case so put in had not been. subjected to cross-examination. The omission to explain this matter to the jury was fatal and vitiated the charge. Abdur Rahman Vs. Crown (I960) 2 DLR 285.

 

—Where the Magistrate who held the test identification parade could not be available in the Court of Sessions before three days from the date when his absence was being, explained in the Sessions Court and Sessions Judge merely allowed the Magistrates evidence in the committing Court to be put in under section 33 Evidence Act without giving adequate directions to the jury and the-Circumstances of the case showed that it was important that the Magistrate should be available for cross-examination.

 

Held : The Sessions Judge failed to give adequate directions to the jury with regard lo the evidence of the Magistrate and the conviction wa"s set aside. Kaloo Mondal Vs. Crown -(1950) 2 DLR 307.

—Direction as to evidence put in under section 288. It was not sufficient for the Judge merely to direct the Jury that the statement under section 164 could be used to corroborate the deposition given in the committing court. The proper direction that the Judge should have given Ihe jury was to caution them also that it could be so used only for enabling the jury to decide whether or not to prefer the evidence put in under section 288 lo the evidence given in the Sessions Court and that it was entirely for them to decide as to which of the twq trjcy would prefer. The Slatt Vs. IJaru Mohammad Makdul (1956) 8DLM 404 (408).

—First Information Report—Direction as to its value. The Sessions Judge addressed the jury saying. "It is to be seen and considered how far the statements made in the F.I.R. arc supported by other evidence on the record. So, while considering the statements made in Exts. 9 and 12 which have been read over to you several times, you are to consider whether these' statements really get support from the evidence of the P.Ws. and other evidence on the record."

 

Held: This is not a proper direction inasmuch as the F.I.R. has been treated as a piece of substantive evidence. Ainuddin Karikar Vs. Crown (1954) 6 DLR 645.

 

—Circumstantial evidence. The Judge charged the jury saying "Circumstantial evidence is not without its value, and sometimes the evidence may lead us to the same conclusion as docs positive direct evidence. But, while basing your conclusion on circumstantial evidence, you arc to be more careful and cautious."

 

Held : This is not a proper direction. The Court should have cautioned the jury that they must find that the circumstantial evidence is incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis save that of his guilt. Ainuddin Karikar Vs. Crown, (1954) 6 DLR 645.

 

Emphatic language. When the Sessions Judge charged the jury in too emphatic language giving expression to observations which should not have found place in his charge to the jury, placing before them, as proved facts, matters which they were called up on to decide, the conviction was set aside. Sultan Ahmed Vs. Crown (J950) 2 DLR 30.

 

—Expressions   assuming   guilt   to   be avoided. Dogmatic expressions to be avoided— Too emphatic an expression of opinion about a question of fact amounts to misdirection. State Vs. Aftabuddin (1956) 8 DLR 554.

 

—Dogmatic expressions should be avoided in a charge to the jury. Genda Vs. Crown (1950) 2 DLR

76.

 

Judge expressing his opinion too dogmatically to the jury amounts to misdirection. Tunya Vs. Crown (1949) 1 DLR 138.

 

—It is a dogmatic expression for the Judge to say : "To my mind the prosecution has succeeded in proving the case beyond reasonable doubt." But the use of one such expression followed by the caution that the jury were the sole judges of facts cannot be said as occasioning failure of justice. Abdur Rahman Vs. Crown (1950) 2 DLR 285.

 

—Mis-directions — expressions assuming guilt of the accused to be avoided. In his charge, the Judge observed as 'follows :

 

"You may, therefore, take it that it was a grievous hurt that was caused on the person of Keyamuddin. You have also heard from Kcyamuddin that the hurt was caused with a sharp-cutting sandoa. The medical evidence supports it. You may, therefore, take it that the culprits have committed an offence of causing a grievous hurt.

 

Held : This is very improper observation. The Judge, in charging the jury, should avoid the use, as far as possible, of expressions which assume the guilt of the accused. Khahiruddin Vs. State (1957) 9 DLR 487.

—Misdirection—Dying declaration admitted in part. It is a serious error to admit a dying declaration in part and it is a further and even more serious error not to point out to the jury that it had not been liable to cross-examination. Cyril Waugh Vs. King (1957) 9 DLR (P.C.) 353.

 

—A convenient way of directing'the jury is to tell them that the burden of establishing guilt is on the prosecution but that they must also consider the evidence for the defence which may have one of three results : it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes docs strengthen the case for the prosecution. But there is no magic formula and provided on a reading of the summing up as a whole the jury are left in no doubt where onus lies, no complaint can properly be made. Joseph Bullard Vs. Queen (1958) 10 DLR (PC) 174 (175).

 

—Introduction of matter not directly relevant—prejudicial to the accused. The accused was tried under section 498, P.P.Codc, for uttering forged notes on a particular day in a hat. He was arrested soon after on that day, one L was also put under arrest in the same hat on the same day for uttering a forged note. There was nothing in common between the accused and L who was separately tried for his alleged offence. In the trial of the accused, the Sessions Judge accepted the evidence with regard to L and discussed it at length in his charge to the jury.

 

Held : The story about L had no relevancy to the prosecution against the accused whatsoever, but it might serve one purpose; it might go to show that uttering of forged notes was constantly going on at that hat. It could not be said that the introduction of that story to the jury did not cause any prejudice to the accused. Tabibur Rahman Vs. Crown (1957) 9 DLR 165.

 

—Caution that a judge should adopt when he feels that the prosecution story is true or is suspicious. If he feels very strongly that the prosecution's case is a true one, whilst maintaining his care and his vigilance in presenting all the facts before the jury, he ought to, as much as possible, conceal his feelings. It is no part of a Judge's duty to act as an Assistant Public Prosecutor. But if he feels that there is something extremely suspicious about the prosecution case, if he finds that the main witness for the prosecution is a person whose testimony should be regarded with the greatest caution, then he ought to show his hand to the jury. Khabiruddin Vs. State (1957) 9 DLR 487.

 

—Fresh Charge. Where the verdict of the jury is obviously an inconsistent verdict the Judge is competent to make a further charge to the jury and ask them to reconsider their verdict. Slate Vs. Aftab uddin (1956) 8 DLR 554.

 

—Charge to jury—Sending back jury repeatedly for reconsideration—Asking jury to arrive "; verdict "by head and not by heart"

 

Misdirection—violation of principle of natural justice. G. Mohiuddin Vs. Crown (1958) 10 DLR (FC) 90.

—Charge on the record is not the charge delivered. Where the charge on the record was not the charge which was delivered to the jury there was no alternative for the Appellate Court but to set aside the verdict and order a retrial. 55 CHW (DRl) 10.

—Confession when inadmissible evidence—reference to it in the charge. Reference to the jury to the contents of inadmissible confession while dealing with the case of the accused vitiates the trial. Hiralal Das Vs. Crown (1951) 3 DLR 383.

 

—Where the Sessions Judge read out to the jury the portion of an inadmissible confession but subsequently on realisation of the error expunged the confession from the evidence and asked the jury not to lake any notice of it.

 

Held : It being impossible to calculate the manner in which the jury reacted to the misdirections, it must be held that the accused has been prejudiced. Ha Mitra Vs. Crown (1952) 4 DLR 311.

 

—Statement wrongly put before the jury as confession—Judge's subsequent effort to remove the effect of the mischief done—Not safe to hold as being successful. Ishaque Vs. Crown (1953)5 DLR 430.

 

—While admitting the confession into evidence a Judge must draw the attention of the jury to all the relevant facts and circumstances. Mohar Vs. Crown (1955) 7 DLR 633.

 

—Confession—voluntary or not—respective scope of Judge and the jury. The question whether a confession is voluntary or not is a matter to be decided by the jury, and it is also for the jury to decide whether they would believe the confession Of not. Crown Vs.Jslam Master (1955) 7 DLR 205.

 

—The difficulty in all cases where more than one person is accused of crime and when the evidence against one is inadmissible against another, is that, however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against being influenced against one by the evidence admissible only against another, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of another accused. Wall Md. Vs. King 1 PCR (PC) 1.

 

—Where the Sessions Judge has in his charge directed the jury that a retracted confession cannot be evidence against the co-accused unless the confession has been corroborated in material particulars.

 

Held: This is a misdirection. The proper direction should be that the value of a retracted confession, as against the co-accused is substantially that which will stand on its own legs to justify a conviction; the retracted confession itself should not be used in any way to support a conviction. Ha Ultra Vs. Crown (1952) 4 DLR 311.

 

—Accomplice's evidence—non-direction about such evidence. It is a serious omission to fail to direct the jury that although the uncorroborated testimony of an accomplice is admissible in evidence and a conviction based on it is not illegal, yet as a matter of practice and prudence it is not at all safe to rely upon his evidence unless corroborated in material particulars by independent evidence and that the jury had a right to convict on the uncorroborated testimony of an accomplice but it is dangerous to do so. Such an Omission vitiates the trial. Malta Chandra Vs. Crown 1 PLR, 36.

 

—Explanation of law—Charge must contain an explanation of law. Isharat Vs. The Stale (1958) 10 DLR 136.

 

—The heads of charge should show clearly and distinctly what the exposition of law actually was. It must contain in itself sufficient materials for the High Court to satisfy itself that there was a proper and adequate explanation of the law in relation to the facts thereof. The practice of merely stating in the charge that the sections of the Code have been read over and explained not only deprived the accused of the opportunity of pointing out to the High.Court that the explanation was inadequate or incorrect, but it also deprived the High Court of the advantage of knowing what it was that was exactly placed before the jury.

 

—Judge's personal opinion of question of fact can be placed before the jury but, while doing so, the jury must be immediately told that they are not bound to accept it. Ishral Vs. State (1958) 10 DLR 136.

 

—No offence made out—accused to be acquitted. No offence against the accused made out even .if the evidence led is accepted as true. Judge must direct the jury as a matter of law to return a verdict of not guilty. Abdul All Vs. State (1958) 10 DLR 169.

 

—Murder charge — mitigating circumstances. In a murder charge, conduct which affords sufficient provocation to accused— though not to justify the criminal act, it must be left to the jury to determine whether the provocation is enough to reduce the crime from murder to manslaughter. Joseph Bullard Vs. Queen (1958) 10 DLR (PC) 174.

 

—A proposition of universal application cannot possibly be that the same evidence which has been adduced in support of an unsuccessful defence of self-defence can never be relied upon in whole or in part as affording provocation sufficient to reduce the crime from murder to manslaughter. Conduct which cannot justify may well excuse. Joseph Bullard Vs. Queen (19'58) 10 DLR (PC) 174.

 

—Judge entitled to express his opinion strongly on question of fact, but immediately after that . should tell the jury that they are not bound by his opinion. Khabiruddin Vs. State (1957) 9 DLR 487.

 

—Judge's duty to point out the discrepancies and contradictions in witnesses' evidence—while jury's function is whether to believe or disbelieve the evidence. Abul Kasem Vs. Slate (1957) 9 DLR 607.

—Proper and adequate explanation of the law must appear from the charge. Khabiruddin Vs. State (1957) 9 DLR 487.

 

-----Misdirection—Once it is found that the jury's mind was influenced by misdirection, it is not safe to conclude that jury might find guilty on other independent evidence. Mir Amir Hossain Vs. Crown (1954) 6 DLR 518.

 

—The Sessions Judge observed "that so far as the accused Ismail Kari is concerned, we do not get any suggestion from the side of the defence that there is-some other man of the name Ismail Kari. We have not heard from the side of the defence that there is some other Ismail Kari in the locality."

 

Held: The extract from the judgment quoted does lend support to the argument that the learned Sessions Judge was inclined to throw the onus on this particular appellant to establish that he was not the person named on the piece of paper. (1950) 2 DLR 120.

 

S.299 : Evidence, whether true— jury's function. It is the function of the jury to determine whether the evidence is true, and if the Judge thinks that the evidence, if true, will lead to conviction, then he must leave the case to the jury. Abdul Nur Vs. State (1957) 9 DLR 312.

 

—-In order to judge whether the confession is true or false, the jury may also decide whether the confession is voluntary or not. Mohar Vs. Crown (1955)  7 DLR 633.

 

1859

Constitution of Pakistan, 1962 -19

Citation: (1958) 10 DLR (FC) 97: PLD (1958) (FC) 1, (1956) 8 DLR 265, (1957) 9 DLR 511, (1951) 3 DLR 240, (1956) 8 DLR 263, (1956) 8 DLR 178, (1956) 8 DLR 263, (1954) 6 DLR 490, (1955)7 DLR 515, (1956) 8 DLR (SC) 169, 5 PLR (Dacca) 513, (1954) 6 DLR 431, (1955) 7

Subject: Constitution of Pakistan

Delivery Date: 2018-09-11

S.302 : Require the jury to retire for further consideration. Judge may require the jury to retire for further consideration more than once when verdict is unintelligible or require elucidation-Judge ought not to send the jury back repeatedly for returning a unanimous verdict. Gulam Mohiuddin Vs. Crown (1958) 10 DLR (FC) 97: PLD (1958) (FC) 1.

 

—S.303: Verdict clear—questioning the jury not necessary. When there was no doubt or ambiguity as to what the jury's verdict was, the Judge is not empowered under the Criminal Procedure Code to put questions to the jury as to the reasons for their verdict. CWN. (DR I) 66.

 

S.307 : In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial Court, and if the jury takes one view of the evidence and the Judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of facts. In such a case, a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the jury. Stale Vs. Razzaque (1956) 8 DLR 265.

 

—A reference under section 307 of the Code is not justified if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial Court and if the jury takes one view of the evidence and the Judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judge of facts. Asgar Vs. State (1957) 9 DLR 511.

 

—The jury having given their verdict, the Sessions Judge disagreed with the same and recorded in the order-sheet his opinion that for the ends of justice the case should be referred to the High Court under section 307. His letter of reference under section 307, contained all the particulars required under that section except that the words "for the ends of justice" were not mentioned therein.

 

Held: Mere omission of the words "for the ends of justice" in the letter of reference does not in itself affect the case at all. Akram Molla Vs. Crown (1951) 3 DLR 240.

 

—As a rule, the letter of reference should be complete in itself but it would be improper to return a reference merely for re-submission in proper form on the technical ground that the letter of reference was not in itself complete if the High Court is satisfied from the record that the Judge making the reference is clearly of opinion that it is necessary for the ends of justice to do so. State Vs. Razzaque (1956) 8 DLR 263.

 

—The facts and circumstances set out in the letter of reference must be so clear as to justify an inference that a reference under section 307, was necessary for the ends of justice and it must be patent on the facts of the letter of reference that it was so necessary. Crown Vs. Islam Master (1956) 8 DLR 178.

 

—If in consideration of the facts and circumstances of a particular case as well as the defence suggestions and the materials produced by them, the jury took a view against the prosecution, which cannot be said to be manifestly wrong, the fact that on the evidence the learned Sessions Judge had taken a different view, or that the prosecution story was more probable would not be a ground strong enough to make a reference under section 307 to the High Court. Crown Vs. Islam Master (1956) 8 DLR 178.

 

—Mere misdirection to the jury not enough for reference. The High Court has in a fit case the power to order a retrial if it considers the same to be necessary for the ends of justice. But a retrial should not be ordered unless the High Court is unable upon the evidence on the record to come to any definite conclusion of its own after giving due weight to the opinion of the Judge and the jury or unless it is satisfied that there has been some serious error of procedure which has prejudiced the accused. Mere misdirection to the jury docs not come under cither of these heads. Slate Vs. Razzaque (1956) 8 DLR 263.

—There can be a reference under section 307 as to an acc.used regarding whom the Sessions Judge accepted the verdict of the jury and regarding whom he stated no reasons in his letter of reference but has only stated that the final orders against him also should be passed along with the other accused whose cisc has been referred to by the Sessions Judge. Crown Vs. Mangal Khan (1954) 6 DLR 490.

 

—Partial reference acquitting the accused of some offences and referring his case in respect of other charges is illegal. In a reference under section 307 in respect of any accused person, the entire case so far as he is concerned must be submitted to the High Court. Crown Vs. Md. Molla (1955)7 DLR 515.

 

—Acceptance of reference by the High Court in part is quite in accordance with law—verdict of the jury not being reasonable can be set aside. Din Md. Vs. Crown (1956) 8 DLR (SC) 169.

 

—Under section 307 of the Cr.P.Code, the High Court is no doubt entitled to set aside the verdict of the jury, but, in doing ,so, it must not only consider the entire evidence and the opinion of the Sessions Judge but must also give due weight to the opinion of the jury. The use of the expression 'due weight' implies that the opinion of the jury is to be respected unless it is so absurd or perverse that no reasonable body of men could have arrived at the same. 5 PLR (Dacca) 513.

 

—Reference to the High Court—Principles to follow—Ends of justice—retrial order—Partial reference. If the Sessions Judge does not agree with the verdict of the jury and thinks it necessary in the interest of justice to make a reference to the High Court, then he should place on record the fact of his disagreement. But he should place on record, when passing orders in a jury trial, that he accepted the verdict of the jury though he did not agree with it. Haran Sardar Vs. Crown (1954) 6 DLR 431.

 

—In a reference under section 307, the facts and circumstances must be so clear as to justify an inference that the reference was necessary for the ends of justice, and it must be patent on the face of the letter of reference that it was necessary for the ends of justice. Crown Vs. Islam Master (1955) 7 DLR 205.

 

—In order to justify a reference it must be -found that no reasonable body of men could have reached the views which the jury had taken. If two possible views are possible and if the jury lakes one view instead of the other, that-will not be a sufficient ground for reference. Crown Vs. Islam Master (1955) 7 DLR 205.

 

—In a reference under section 307, the High Court has to give due weight not only to the opinion of the Judge but also to the opinion of the jury. A letter of reference must, therefore, not only show the grounds of opinion of the learned Judge but should also disclose the circumstances, if any on which the jury might have relied. Where this is not done, the reference is defective. Crown Vs. Jenaruddin(1955) 7DLR25L.

 

—-In a reference under scc.307, the requirements of "the ends of justice" as laid down in the section must be the determining factor in making the reference. Where the Sessions Judge thinks that the verdict of the jury is contrary to the weight of evidence he should set out clearly and specifically on what portions of the evidence or what facts disclosed by the evidence the accused should have been convicted or acquitted, Akram Mollah Vs. Crown (1951) 3 DLR 240.

 

S.309 : Assessor's opinion—Not binding. Although in coming to his conclusion the trial judge is required to consult the assessors who sit with him at the trial, yet their opinions do not have a formative effect upon the judgement he delivers. The judgment must be formed by himself alone, and must be based exclusively upon legal evidence. Moonda Vs. State (1959) 11 DLR (SC) 32': (1958) PLD (SC) 383.

 

—Failure to record opinion of assessors on all charges vitiates the trial. The Sessions Judge is bound to record the opinion of each assessor in respect of all the charges on which the accused was being tried. Where the opinion of the assessors have not been so taken in compliance with the provisions of section 309 it would mean that virtually the case has beerr tried without the aid of the assessors and thereby such a trial was void in toto. Khana' Vs. State (1958) 10 DLR (WP) 57: AIR 1934 Patna 561 : AIR 1934 Oudh, 354; ILR 25 Mad. 61 rel.

 

—In    trials    held    with    the    aid    of assessors—Passing of orders of convictions and sentences at first and writing the judgment at a latter date violates the procedure and such violation not curable by section 537 of the Code—Procedure laid dawn to be followed ensures due administration of justice. Abdus Satlar Howlader Vs. State (1963) 15 DLR 30.

 

—Trial cannot be vitiated simply because section 309 is violated. ,S imply because the mandatory provision of section 309 was violated, it cannot be said that for that reason the trial, has been rendered bad and corivictions and sentences of the accused were liable to be set aside. Per Shabir Ahmad, J., expressing a different view said, "I do not consider it necessary-for the purpose of the present case to determine what the effect of non compliance with section 309 Criminal Procedure Code would be if the trial has resulted in conviction for more than one offence though the assessors were questioned with regard to only some of them." Md. Sajjad & ors. Vs. State (1960) 12 DLR (WP) 55 :1960 PLD (Lah.) 510.

 

—When   failure   to  question  assessors. When failure to question assessors affects the formation of correct opinion and in obtaining answers from them and which failure affects the case as a whole—Prejudice is clear. Md. Sajjad & ors. (1961) 13 DLR (SC) 81 :1961 (SC) 13.

 

—Omission of Court to question assessors on all charges on which the accused is tried—Trial not fair—Case remanded for retrial. 7957 PLD (Karl) 170.

 

—Sessions Judge trying the case took additional evidence after recording opinion of assessors and the Court's findings are based partly on such additional evidence—proceedings quashed. Shafyat Hossain Vs. Slate (1964) 16 DLR (WP) 116.

 

—When a Sessions trial is held with the aid of assessors, the trial is at an end as soon as the Sessions Judge has taken the opinion of the assessors except for the purpose of giving judgement and if there is a conviction, of passing sentence. After the opinion of the assessors has been recorded,,the Sessions Judge is not entitled £o re­open the trial or to record any additional evidence. Md. Saddiq Vs. Crown (1954) 6 DLR (FC) 50 (54).

 

—The recording of the evidence of a Court witness after the assessors had given their opinion and failure to take the opinion of the assessors a second time did not lead to injustice. The judgment of the High Court cannot therefore, be set aside on this ground. Md Saddiq Vs. Crown (1954) 6 DLR (FC)50(54).

8,309(2) : Where the assessors unanimously came to the conclusion that the accused was not guilty of the charge framed against him and though a judge need not conform to the opinions expressed by the assessors, it is always advisable for him to give very strong and Convincing reasons in his judgment for disagreeing with them. 1 PCR 30.

 

S.309 : For a judge to follow the opinion of assessors in not mandatory—Reasons for disagreeing with the opinion of assessors to be given—Non-compliance vitiates trial, 7959 PLD (Bal.)25.  

 

—Assessors not asked to state their opinion on all the charges on which the accused had been tried -trial bad. 1953 PLD 598. .

 

Ss.310,311 : Previous 'ConvictionTo elicit it-by the Judge questioning the accused,—-grave error. It is a grave error in a Sessions trial for a Judge to elicit by his own questions evidence of the previous conviction of an accused on trial before him, which contravenes the provisions of sees. 310 and 311 of the Cr.P.Codc. Crown Vs. Darog Alt (1956) 8 DLR 190.

 

S.315: Summoning jurors—Function of Clerk of the Crown—Interference unduly by Judge improper—Summoni/g jurors again within six months—Contrary to It w unless list exhausted-— Discrimination on basis of community, improper— Binding down juror—Illegal. 7952 PLD (Sind.) 23.

 

Ss.319-321 : Assessors not qualified to act without their names being on the list. Md. Maroon Vs. Crown (1951) 3 DLR (FC) 408 (417).

 

Ss.326, 327 : Sessions Judge alone to exercise powers under section 326 : Asst. Sessions Judge under section 327, The duty of issuing a precept imposed on the Sessions Judge by $ec. 326, cannot legally be performed by an Assistant Sessions Judge. But the Assistant Sessions Judge has the powers conferred on the Court of Sessions under sec. 327, to summon one set of jurors for a particular trial that has to be held

and this is authorised by sec. 327. Akram Molla Vs. Crown (1951) 3 DLR 240.

 

S.326 >. Of tendering pardon. The fact that the Magistrate tendering pardon was a friend of the father of the accused pardoned does not for that reason disqualify the Magistrate, Rafii Ahmed Vs. State (1959) 11 DLR (SC) 91 : (1958) PLD (SC) 317.

 

—Evidence of a co-accused who turned an approver, cannot be accepted under the section unless such person is concerned, by direct br indirect participation, with the offence. Zahid Hassan Khan Vs. State (1964) 16 DLR 23 PLD 1964 Dhaka 600 (DB): PLR 1964 Dhaka 299.

 

—Order in respect of tendering pardon a judicial order—Refusal on an earlier occasion to tender pardon by a Magistrate is no bar to tender pardon subsequently to the accused by another Magistrate. llajee Muhammad llossain Vs. State (-1964) 16 DLR 383.

 

—Omission to record reasons for tendering pardon is a curable irregularity if there is no failure of justice. Rafiq Ahmed Vs. Stale (1959)JlpLR(SC) 91 ; (1958) PLD(SC) 317 (7 PLR (FC) 176 rel).

S.326(2)(a): Objection under section 326(2)(a) involving decision on both questions of law and fact should be raised at, the earliest opportunity.

 

Objection that the constitution of the Court was illegal for having violated the provisions of section 326 (2)(a), cannot be entertained when raised for the first time in the Appellate Court inasmuch as the contention involves decision on both questions of law and fact and should, therefore, have been raised at the earliest opportunity. Abdur Rahman Gazi Vs. State (1959) 11 DLR 494.

 

S.337 ;  Accused not legally discharged or   pardoned   cannot   be   examined   as   a witness—His evidence when given  in  such . circumstances, wholly inadmissible. An accused not legally discharged or lawfully tendered pardon either under sections 337 or 494 Cr.P.C. continues to be an accused in the clutches of law. He cannot be administered oath or examined as a witness in the case and his evidence is wholly inadmissible against the other accused persons. All the incidents of his being an accused having been present in the case, the mere omission to mention his name in the formal complaint will not take him out of the category of an accused. An accused is always an accused until he ceases to be an accused in accordance with law. He can not therefore, give evidence as a witness because he has not been administered oath. AbdurRashid Vs. Slate, (1970) 22 DLR 109.

 

8.337(1) : Sub-section (1) of sec. 337 lays down that it i« within the competence of the Magistrates mentioned therein to tender a pardon to aperson, who was supposed even to be indirectly concerned in or privy to the offence. Juma Vs. Crown (1955) 7 DLR (WP) 45.

S,337(1)A : Omission to record reasons for tendering pardon to an approver as required by sub-section (IA) of section 337, is a curable irregularity and does not render the evidence of the approver inadmissible in evidence, in the absence of circumstances tending to show that omission has occasioned a failure of justice. FazalDad Vs. Crown 7 DLR (F.C.) 176.

 

S. 337(2) : When a pardon was granted to an accused person and at no stage of the proceedings was the pardon revoked, sec. 337 (2) requires that the person should be examined not only in the committing but also in the Sessions Court. If the Magistrate while sending him up to the Court of Session as a witness, through mistake, includes his name as aa accused person that would not take away the legal obligation imposed by sec, 337 (2) of the Code and would not turn an approver into an accused. Abbas AH Vs. Crown (1952) 4 DLR 247.

 

8.337(2) : Sub-section (2) of sec. 337, makes it incumbent that the person who has accepted tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Juma Vs. Crown (1955) 7 DLR (WP) 45.

 

.8.337(3) : Enlargement of the approvers on bail weakens their evidence. Wazir Vs. State (1961) BDLR (WP) 5'M960) PLD (Kar) 674.

 

8.339 : Public prosecutor to certify fulfilment of the conditions of the pardon. Under sub-section (I) of sec. 339, it is only the Public Prosecutor who can certify that in his opinion a person who has accepted a tender of pardon has, cither by wilfully concealing anything essential or by giving false evidence, not complied with the conditions on which the tender was made and it was not within the province of the trial judge to give such a certificate. Wazir Vs. State (1961) 13 DLR (WP) 5.

 

—'Statement' refers to approver's statement in Court. The words " the statement" in section 339 (2), refer either to the statement of the approver before the committing Magistrate, or his, statement at the trial, or to both. They do not include statements under sec. 164, Cr.P.Code, made by the approver in course of the investigation. Mst, Fazlan Vs. Crown (1956) 8 DLR (FC).

 

8.359 : When an approver is put on his trial, after forfeiture of pardon, for the offence with regard to which he had been granted pardon, his statement in the previous trial is admissible under the provisions of sec.339(2), Cr.P.C, though it would otherwise have been inadmissible because of sec. 24, Evidence Act, inasmuch as such a statement was obviously the result of an inducement, viz. tender of pardon. PLD (1955) (Lah.) 375.

 

—Approver's statement before the committing Magistrate should be taken as a whole including the part wherein he says he has not concealed anything and that the terms of the pardon had been complied with. PLD (1955) (Lahore) 375.

 

—S. 339 : Approver declared hostile-Production of certificate by the Public Prosecutor that the approver had wilfully concealed the facts of the case and had not complied with the condition of pardon is a condition precedent for initiating proceedings against an approver who is alleged to have forfeited his pardon—Absence of such  certificate vitiates the trial. Aziz Vs. The Stale, (1970) 22 DLR (WP) 42.

 

S.339A : Forfeiture of approver's pardon—A clear finding should be given by the trial Court as to whether or not an approver who is put on his trial had complied wilh the conditions of the pardon. It should give its own reasons for coming to that conclusion because no conviction can be sustained without such a finding - Brief verdict is not in strict compliance with the law. Aziz Vs. The State, (1970) 22 DLR (WP) 42.

S.339B : In view of section 35(c) of the Ordinance No. 24 of 1982 the provision for disposal of a pending case within the time mentioned therein is only directory and therefore failure to observe the time limit has no effect on the proceeding. In terms of section 35(c) of the Ordinance 24 of 1982, in respect of a case which has started after Ordinance 24 of 1982 came into effect within the time allotted if the trial of such a case is not concluded, further proceeding of the case shall be stopped and then—the accused be released. Channu Mia Alias Yusufuzzaman Vs. Slate (1983) 35 DLR 275.

 

S.339B(I)(2):~Trial in the accused's absence is illegal when the acccused has not absconded, but his failure to appear before the trying court is due to the fact that the Magistrate and Sessions Judge did not mention any date on which the accused was to appear in Court, Kala Meah Vs. State (1984) 36 DLR 263.

 

S.339C(2):—Section 339C read with Ordinance No. XXXVII ef 1983. Ordinance XXXVII of 1983 "speaks of cases which were pending before Criminal Courts when this Ordinance was promulgated on 8,8.83.~The present case before the Additional Sessions Judge having started on 15.5.83, Ordinance XXXVII of 1983 has no application. This case is governed by the provision of section 339C, sub-section (2) which required that the trial of a criminal case by Sessions Judge must be concluded within 150 working days. The trial before the Sessions Judge not having'been concluded within those days the accused has acquired a right of being released and the Court accordingly directed the release of the accused person. Ramjoy Mondal Vs. The State (1985) 37 DLR 252.

 

S.339C:—Under section 339C as amended from time to time, the limitation of time for conclusion of the trial with respect to cases that arose after 8.8.83 is 150 working days. According to the provisions of section 339C as amended from time to time, the limitation of time for conclusion of the trial with respect, to cases that arose after 8.8.83 is 150 working days and the learned Additional Sessions Judge was not justified in rejecting the prayer for release of the petitioners. Ramjoy Mondal Vs. The State.(1985) 37 DLR 252.

 

—Provisions of section 339C will apply to the present case and having regard to provisions of sec. 35 of the Ordinance No 24. of 1982 it was a case which was pending trial immediately before the commencement of the Ordinance. Md. Suruj Mia Vs. Katu alias Abdul Latif(19S4) 36 DLR 102.

 

—Provisions of s. 339C will operate in respect of cases which arise after 21.8.82-Present case was a pending case before s. 339C came into force and as such the provisions of this section will not be attracted in the present case. Moklesur Rahman Vs. Stale (1984) 36 DLR 174.

 

—Provisions in section 24 of Ordinance XXIV of 1982 introducing new section 339C in the Code and making provision for trial of a case within certain time shall be subject to the transitory provision, i.e. sub-section (c) of section 35 of the said Ordinance. Md. Suruj Mia Vs. Katu (1984) 36 DLR 102.

 

—Stoppage of proceedings and release of accused persons does not mean final disposal of a case. Such a case is still considered to be a pending case. Md. Joha alias Shamsuzzoha Vs. The State (1986) 38 DLR 205.

 

S.339C read with S.3S(c) of the Code of Criminal Procedure (2nd) Amendment Ordinance (24 of 1982). A case cognizance of which was taken on 10.3.81, is a case which falls within the provisions of section 35(c) of Ordinance 24 "of 1982 to which section 33-9C has no application, Ruhul Amin Vs. State (1986) 38 DLR 166.

 

Sec, 339C read with sec, 173, A charge-sheet which is not in accordance with law, that is no charge-sheet in the eye of law, when submitted on a particular date can be taken as starting point for conclusion of trial u/s.339C—Acceptance of such a charge-sheet by court makes no difference. Md. Rafiqullah Vs. State (1986) 38 DLR 124.

 

—The police can submit any number of supplementary charge-sheets. (1986) 38 DLR 124.

 

S.339C(1)(3) : If trial by Magistrate continues beyond 60 days referred to in sub-sec. (1) but it concluded within 30 days' time referred to in sub-sec. (3) though the Court did not record in writing reason for requiring 30 days more as provided in sub-sec. (3), the trial held is valid. Yeakub Kazi Vs. Kaloo Khandaker (1986) 38 DLR 8 .

 

S.339C(i)(e) : 'Working days' of a Court of law means working days of the Court and not of the Magistrate concerned. Nay an Vs. State (1986) 38 DLR 415.

 

—Trying Magistrate engaging himself in some extra function during the course of the trial—those days can not be discounted from the 'working days' u/s. 339C. Nayan Vs. State (1986) 38 DLR 415.

 

S.339C(3J ; Provision for recording reasons to avail 30 days more time for trial u/s. 339C(3) is merely directory. Md. Rafiqullah Vs. State. (1986) 38 DLR 124.

 

—When a Magistrate on receipt of a case for trial could not even frame charges against the accused, within 60 days time provided for conclusion of the trial of the case u/s. 339C(1) from the date of such receipt of it is to be assumed that the Magistrate extended the trial for further 30 days by implication. Md. Rafiqullah Vs. Slate. (1986) 38 DLR 124.

 

S.339C(4) : Release of the accused (charged with murder) on conclusion of the specified time, without being tried—Is a matter of seriyus concern demanding suitable provisions to remedy the grave situation. Mohammad Ali Vs. Sukur All (1986) 38 DLR 1.

 

S.339C(4) : Effect of Martial Law Administrator, (a Supra-Constitutional authority), taking the case out of the jurisdiction of the Sessions Court—The case ceases to be pending in the Sessions Court and when the case is sent back again to the Sessions Court the limitation of 150 days as provided under section 339C(4) of Cr.P.C. shall be counted afresh. Sayed Ahmed Vs. State. (1987) 39 DLR 407.

 

—Sub-s.(4) of S.339C says that if trial of a case be not concluded within the specified time or within the extended period the proceedings will be stopped and the accused be released. Section 339C(4) though mandatory in nature will not apply to a pending case before coming into force of Ordinance No. XXIV of 1982 dated 21.8.82. Moklesur Rahman Vs. State (1984) 36 DLR 174.

 

S.340 : Lawyer at States's expense to defend the accused. Lawyer engaged at Government expense to defend an accused in a murder case—Court and counsel—Appointment of counsel on the day of trial—No adequate opportunity for preparation of the ease was given. Khadim Vs. the Crown (1954) 6 DLR (WPC) 13.

 

S.340 : Counsel.who accepts a dock-brief and for fee paid by the State undertakes to defend a prisoner without trying to know anything about the case offends against the traditions of his profession. If he is not ready for the defence, it is his duty to ask for time and, if necessary, for adjournment, Khadim Vs-Thc Crown (1954) 6 DLR (W.P.C.) 11.

 

—Magistrate's duty about the engagement of a lawyer for accused. A committing Magistrate, who does not formally communicate that the accused was not represented by counsel before him and is not in a position to engage his own counsel for defence at the trial neglects tx> perform an important part of his duty and, when the accused is brought for trial, a Sessions Judge, who, finding that it is necessary to appoint counsel at the Government expense for the prisoner, nominates a counsel merely to stand and watch the trial without giving him an opportunity to study the necessary documents and think over the case, makes a farce of the rule. KhcuUm Vs. The Crown (1954) 6 DLR (WPC) 13.

 

—Counsel appointed by Court on behalf of the accused—Court should inform the accused, that if representation arranged by it is not acceptable to him he should conduct his case himself. mkanuUin Vs. The Crown (1954) 6 DLR (WPC) 127.

 

—Accused has got the legal right of advancing arguments before the trying Magistrate. It was contended that in a criminal trial there is no provision in law that arguments must be heard by a trying Magistrate on behalf of the accused.

 

Held: Accused in a criminal case under section 340, Cr.P.C. has been given the statutory right of being defended by a pleader. The right of being defended by a pleader means the right of making such representations or submissions to the Court as may be available to an accused person for meeting the charges levelled against him. In other words, accused has been given a right of advancing arguments in a criminal trial. Abdul Mannan. Vs. State (1962) 14 DLR. 667 : (1962) PLD (DAC). 334: (1954) 6 DLR (FC) 65 fol).

 

—Lawyer appointed by the accused-should be left to conduct the defence except in very exceptional circumstances when on account of his inability to conduct the defence he can be made to retire with the accused's consent and'a State lawyer appointed with accused's consent to conduct the defence. It is difficult to lay down any hard and fast rule in this behalf. But Courts of Sessions and other trial Courts should do well to remember the provision of sub-section (I) of section 340 of the Code. It should be remembered that the conduct of the defence is a matter for the accused alone and it is most undesirable that the court should intervene in order to obtain the withdrawal of the defence lawyer engaged by the accused. In no case can the court compel him to retire because -it has taken the view that the defence is being conducted inefficiently.

 

—Section 340 (I) no doubt lays down that any person accused of an offence before a criminal Court may of right be defended by a pleader, but this provision of law cannot be interpreted as meaning that an accused can indefinitely delay the proceedings by refusing, without reasonable cause, to accept the services of the counsel appointed on his behalf by the Court. The only effect of sec.340(I) is that once counsel has been engaged, either by the accused himself or on his behalf, no Court can deny such counsel the right of appearing. Iftekharuddin Vs. the Crown (1954) 6 DLR (WPC) 127.

 

S. 340 : Accused's right to be defended at the States's cost—Brief must be supplied and proper opportunity be given for the lawyer to make himself ready—Courts responsibility to engage lawyer for undefended accused. The lawyer in the present case by reason of the fact that the brief of the case was supplied to him only three and a half hours prior to the trial, a last minute effort,-which left little lime to enable the lawyer to make himself ready with the cases far less to have private consultation with the accused appellants. Abdul Gam Vs. State (1964), 16 DLR 388.

 

—'Last moment appointment' of a lawyer by the State to defend a pauper accused charged with an offence of capital punishment docs not vitiate the proceedings unless it is shown ,that such hasty appointment has prejudiced the accused. State Vs. Abdur Rashid, (1972) 24 DLR 18.

 

—Last moment appointment of a defence lawyer for an undefended accused virtually negatives the right of the accused to be properly defended in the case. The State Vs. Purna Chandra Mondal (1970) 22 DLR 289.

Having regard to the fact that late engagement of a defence lawyer is of no use, it is necessary that the rules as contained in the Legal Remembrancer's Manual in aid of section 340 of the Code of Criminal Procedure must be vigorously followed for the ends of justice. Ahdur Rashid Vs. State (1975) 27 DLR (Appl. Divn.) 3.

 

1860

Constitution of Pakistan, 1962-2

Citation: (1985) 37 DLR 1, (1983) 35 DLR 430, (1985) 37 DLR 1, (1986) 38 DLR 188, (1987) 39 DLR (AD) 197,(1985) 37 DLR 66, (1969) 21 DLR (SC) 182, (1968) 20DLR 780, (1985) 37 DLR 66, (1968) 20 DLR (WP) 264, (1982) 34 DLR (AD) 222, (1986) 38 DLR 152, (1984) 36 DLR

Subject: Constitution of Pakistan

Delivery Date: 2018-08-29

—When examination of a Magistrate who recorded confession becomes

necessary. The confession or statement, as the case may be, will be admitted into evidence without examining the Magistrate in the Court. It is only when the Court finds that any of the provisions of section 164 or 364 Cr.P.C. have not been complied with by the Magistrate concerned that it shall lake evidence of the concerned Magistrate.

Emran All Vs. State (1985) 37 DLR 1.

 

—Statement u/s. 164 not a substantive evidence. It is well settled that the statement of a witness recorded u/s.164 Cr.P.C. by a Magistrate is not a substantive evidence and can only be used for contradicting or corroborating a witness.

 

Rahij alias Ghatoo Vs. The State (1983) 35 DLR 430.

 

—Examination of the Magistrate who recorded the confession u/s, 164 is undesirable. Following this observation' the Supreme Court of India held in the case of Kashmirq Sing Vs. The State of Modhya Pradesh, AIR 1952(SC) 159, that defence objection that the prosecution had not examined as a witness the Magistrate who had recorded the confession under section 164 Cr.P.C. was not tenable, as it was "an improper and undesirable practice to examine Magistrate in such cases.

 

Emran All Vs. State (1985) 37 DLR 1.

 

—Condemned prisoner Abdur Rouf was arrested on 12.2.77 and he made confession on 28.2.77 before a Magistrate who made a disclosure of as to how the murders were engineered and how it took place. It is apparent that the accused confessed his guilt of his own accord.

 

Abdur Rouf Vs. State (1986) 38 DLR 188.

 

—Pre-requisites of judicial confession —The required formalities have duly been observed.

 

NausherAli Vs. State. (1987) 39 DLR (AD) 197.

 

—It is a settled principle of law that the requirement of adherence to the provisions of section

164 (3) Cr.P.C. is not a mere matter of form, but one of substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed Vs. King-Emperor AIR 1936 (P.C.) 253. Construing sections 164 and 364, Cr.P.C. together, the Privy Council field that it would be an unnatural construction .to hold that any other procedure was permitted than that which was laid down with such minute particularity in the sections themselves.

 

Section 164 Cr.P.C. is a section conferring the powers of a Magistrate and delimiting them. No doubt a Magistrate acting u/ss. 164 and 364 Cr.P.C. is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and good sense where a power is given to do a certain thing in a certain way thing must be done in that way or not at all. Other methods of performance arc necessarily forbidden.

 

Zaheda Bewa Vs. The State (1985) 37 DLR 66.

 

—Ss. 164(2). 364 & 533: Admissibility of evidence: Per Sajjad Ahmed Jan, J.—As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of confessional nature, it must conform with the requirements of section 364 of the Criminal Procedure Code. If it is proposed to use it was such in proof of that offence; if it falls short of a confession, it is to be rccorded-under section 164(2) of the Code in such manner as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. But if a confession is recorded in disregard to the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal Procedure Code and proved by aliunde evidence, if the error committed in non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused in his defence.

 

Mohammad Sarwar Vs. The Slate (SC), (1969) 21 DLR (SC) 182.

 

—8.164(3): Mandatory provisions which must be complied with before recording confession. Before recording the confession it must" be explained to the accused that he is not bound to make a confession and if he makes a confession it may be used as evidence against him. It is 'a mandatory provision of law. No Magistrate should record any confession unless he believes that the confession was made voluntarily.

 

Any defect arising out of violation of any mandatory provision of law is not curable under section 533 Cr.P.C. Nurul Haque Vs. State (1968) 20DLR 780.

 

—Any Magistrate could depose to a confession made by an accused not induced by threat or promise, without showing or reading to the accused any version of what he said. The Privy Council has already warned against the possibility of covering up the incurable defects of an inadmissible confession by examining the Magistrate who recorded the confession. Incurable defects in the confession cannot be cured by subsequent examination of the Magistrate who recorded the confession. Such procedure will only enlarge the range of magisterial confessions.

 

Zaheda Bewa Vs. The State (1985) 37 DLR 66.

 

—Ingredients  of the  section  explained.

Section 164 (3) Cr.P.C. provides that Magistrate shall, before recording any such confession, explain to the person making it that he is not. bound to make a confession and that if he docs so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily, and when he records any confession, he may make a memorandum at the foot of such record to the following effect:

"I have explained to (name) that he is not bound to make a confession.and that, if he docs so any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to be correct, and it contains a full and true account of the statement made by him."

 

The usual form in which confessions are recorded had also not been used in this case. A hand- written statement on a plain piece of paper has been signed at the bottom by P.W.5 and that is what has been termed as a judicial confession. Zeheda Bewa Vs. The State(1985) 37 DLR 66.

 

—S.167 : Remands to police custody— Magistrate, before granting remands must study police diaries to ensure as to accusations against accused and evidence secured to justify remand.

 

State Vs. Wazir Khan, (1968) 20 DLR (WP) 264.

 

Production of accused. Requirement of law for production of the accused before a Magistrate after his arrest not observed—Proceedings followed clearly show that arrest and subsequent proceedings were characterised by malafide.

 

Khondoker Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

8.167(5) : Magistrate dismissed the earlier G.R.Case started on the basis of F.I.R. dated 2.3.82 u/s 203 CrP.Code on the ground that investigation was not concluded even upto 4.3.84—Dismissal u/s 203 being illegal a fresh F.I.R. can validly be lodged.

 

Alhaj Mamtaj Meah Vs. The State (1986) 38 DLR 152.

 

—On the prayer of the police the Sub-Divisional Magistrate extended the lime for investigation for one month more since section 167(5) Cr.P.C.' provides that if the investigation is not concluded within 60 days from the date of receipt of information relating to commission of the offence the Magistrate shall make an order stopping further investigation and under that provision the Magistrate is empowered to extend period upto 30 days.

 

Sub-section(S) of section. 167 Cr.P.C. speaks of conclusion of investigation within the specified time or within the extended time from the date of receipt of information and not of the date on which the charge-sheet is actually received in the Court by the Magistrate.

 

Syed Ahmed Vs. State (1984) 36 DLR 53.

—S.167(5)(6) : The I.O. before the expiry of 60 days, (as required u/s. 167(5) Cr.P.Code for completion of his investigation) moved the Sessions Judge for extension of further time which the Sessions Judge being empowered u/s 167(6) granted. Held: There being some other orders following the above order granting extension which are valid in law, the irregularity of his earlier order can not be a ground for quashing the proceedings pending before the Magistrate.

 

Sabitri Rani Dey Vs. The State (.1985) 37 DLR97.

 

8.167(5) read with section 35, clause (c) of Ordinance 24/1982 : The time-limit for conclusion of investigation within 180 days from the date of receipt of the F.I.R. is merely directory—Investigation not affected if carried on beyond this time limit.

 

Alhaj Mamtaj Meah Vs. The State. (1986) 38 DLR 152.

 

—8,167(5) : 90 days time (together with the extended period) shall be reckoned from the date of receipt of information.

 

Syed Ahmed Vs. State. (1984) 36 DLR 53.

 

8.167(6) : Time extended for the purpose of investigation by the Sessions Judge on his satisfaction about such extension is valid in view of S. 167 (6).

 

Rafiqul Islam Vs. MA. Hoque (1984) 36 DLR 343.

 

—When further investigation has been stopped on failure of the investigation being complete within the allotted lime, the Sessions Judge acting u/s. 167(6) may grant further time for investigation either suo motu or on application by I.O. From the above provision it appears even the Sessions Judge can pass an order for further investigation into an offence which has been stopped on the expiry of specified time or extended time, if he is satisfied that further time is to be granted. He can act under this section suo motu or on an application made on this behalf.

 

Rafiqul Islam Vs. Md. Abdul Hoque (1985) 37 DLR 47.

 

—From a plain reading of the entire provision of section 167 Cr.P.C. including its sub-section(6) it will appear that the Session's Judge may act on an application made to him or otherwise, "where further investigation into an offence is stopped on the expify either of the specified time or of the extended time under sub-section (5),"

 

Sabitri Rani Dey Vs. The State (1985) 37 DLR 97.

 

—Session Judge can be moved for further police investigation.

 

Md. Abul Kalam Azad Vs. State. (1986) 38 DLR 159.

 

8$. 167(6) (7) (7A) : Sub-sections (6), (7) and (7A) of section 167 —Provisions of these sub-sections explained in respect of their relation to each other.

 

Md. Abul Kalam Azad Vs. State (1986) 38 DLR 159.

8.167(6) & (7) : Difficulty arising from the provision as drafted in sub-sees. (6) and (7) of sec. 167 to be resolved so as to avoid any unwarranted conclusion.

 

Md. Abul Kalam Azad Vs. The State (1986) 38 DLR 159.

 

Section 167 sub-sections (7), (7A). If the Magistrate releases the accused under sub-section (7), the Dist. Magistrate can order prosecution under sub-sec. (7A) within 6 months from the date of release. Md. Abul Kalam Azad Vs. The State (1986) 38 DLR 159.

 

—Without express order by the Magistrate releasing the accused, the accused is not automatically released with the expiry of schedule time. Md. Abul Kalam Azad Vs. The State (1986) 38 DLR 159.

 

8.167(7) : When the Magistrate is informed by the prosecution that the Sessions Judge is being moved for extension of time for further investigation, the accused's release order should be withheld for reasonable time to get an order of the Session Judge under sub-sec. (7) of S. 167. Md. abul Kalam Azad Vs. The State (1986) 38 DLR 159.

 

S. 167(7) : Power to revive—Order passed by the learned A.D.C. u/s. 167(1) Cr.P.C. in exercise of powers not vested in him is illegal.

 

Muslehuddin Vs. State (1987) 39 DLR 421.

 

—Extension of time for investigation allowed by the A.D.M. cannot be treated as revival of the case.

 

Muslehuddin Vs. Stale. (1987) 39 DLR 421.

 

—Earlier order being without jurisdiction, the subsequent order reviving the proceeding on the basis of the earlier illegal order is without jurisdiction and void. Proceeding liable to be quashed.

 

Muslehuddin Vs. State (1987) 39 DLR 421.

 

Ss.   168,   172   and   178   :   Functions regarding    investigation     under     these

sections: A report could always be called from the Investigating Agency because Part V of the Chapter XIV of the Cr.P.C. deals with the investigation and section 168 contemplates report of the police officer who investigated the case and reports the result to the Officer-in-charge of the Police Station and section 170 of the Cr.P.C. and more specifically section 172 provide for calling police diary of a case under inquiry or trial in such court and then the report under section 173 contemplates a forwarding of such report to the court.

 

Mizanur Rahman Vs. State (1977) 29 DLR 167.            

                                        /.:

S.169 : If on investigation police finds that no case has been made out against the accused he may proceed u/s.169. Abdul Haque Vs. State (1977) 29 DLR 427.

 

—The Code and the Police Regulation deal with two categories of accused persons, namely, one relating to persons in respect of whom there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of them to a Magistrate and the other relating to person against whom there is sufficient evidence or reasonable ground of suspicion to justify such forwarding.

The cases of the former are covered by section 169 of the Code and rule 275 of the Police Regulations, enjoins that final report should be submitted in such cases. The cases of the latter are covered by section 170 of the Code and rule 272 of the Police Regulations provides for submission of charge-sheet against them. The cases of persons whose names are shown in column 2 of the charge-sheet are not dealt with separately, either in the Code or in the Police Regulations. Persons whose names are shown in column 2 of the challan, that is, the charge-sheet, fall under section 169 and their case is analogous to the case of persons in respect of whom final report is submitted. The police cannot reopen investigation in respect of persons shown in column 2 of the charge-sheet.

 

Khorshed Alam Vs. State (1975) 27 DLR 111.

 

Ss. 169, 170 and 173 : The words charge-sheet and final report are not in S.I73 or elsewhere in Code—Under rule 275 of the Police Regulation, Bengal, 'charge-sheet' is to be submitted when an accused is sent up under section 170 of the Code and a final report to be submitted when police finds no case against an accused. Khorshed Alam Vs. State (1975) 27 DLR 111.

 

—Charge-sheet may be submitted in a particular case even when a final report has been submitted, if found necessary, on fresh evidence. Khorshed Alam Vs. State (1975) 27 DLR 111.

 

Ss. 169 & 173Police submitted final report as no evidence was forthcoming—When later on evidence was available police applied for reinvestigation, which the Magistrate granted—This is in accordance with law.

 

Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

Secs.1-69 and 198(I)(b)If police submits final report in a particular case—Court (or Tribunal) can in spite of the final report try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

Sees. 169, 170—Duty of Police-Officers to proceed or not against,' an accused person. Unfettered liberty of Investigating Police-Officers in investigation cannot be the subject-matter of investigation by the Court during trial. 5 DLR (FC) 280(295).

 

Ss. 170 & 173 : Provisions of the sections explained. Section 170 provides that if upon an investigation it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or to commit him for Trial or if the offence is bailable shall take security from him for his appearance before the Magistrate, Section 173 refers to the report of the police officer submitted on completion of investigation. Clause (a) of sub-section (I) of section 173 requires the officer-in-charge of the police station to forward to a competent Magistrate, a report in the prescribed form setting forth the necessary particulars. Sub-section (2) of section 173 lays down that where a superior police officer has been appointed under section 158 the report shall, in any case in which the Government so direct be submitted through that officer who may, pending the orders of the Magistrate, direct the officcr-in-charge of the police station to make further investigation, Sub-section (3) lays down that if it appears from the report that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

 

It is to be noted that section 173 refers to investigation and such report may relate to a case covered by section 169 and also to a case covered by section 170 of Code, namely the case where the police officer thinks that the evidence is insufficient to send up the accused and the case where the police officer thinks that the evidence is sufficient to justify the forwarding of the .accused to the Magistrate.

 

Abdur'Rahman Vs. State (1977) 29 DLR (SC) 256.

 

—S.172 Evidentiary value of the contents of Police diary :— According to section 172 the contents of a Police diary are not evidence but arc to be used as aids to the enquiry or trial, as for instance, to assist the Court in questioning witnesses and elucidating by legal evidence points which need clearing up. 8 PLD (Sind) 262.

 

— Section 172 does not authorise the Court to look into the statements in the Police diaries for the purpose of finding out whether they are contradictory to the statements made in the Court or not before granting the application for copies of statements recorded under section 161(3), Cr.P.C. (1952) 4 DLR 201.

 

S.173 : Police report-Right of Police to submit charge-sheet after filing final .report. The right of Police to submit a charge-sheet even after submission of final report cannot be questioned. Abu Vs. Abdul Gani (1962) 14 DLR 511; (AIR Bom. 224 ref.)

 

—Character of the order : The order which the Magistrate passes under section 173 is essentially an administrative order and not a judicial order, and it does not amount either to a discharge or an acquittal of the accused. 1 PLD (Lah.) 537.

 

—The Full Bench case of the Lahore High Court in the case reported in (1962) 14 DLR (Lahore) 21 held that after an incomplete charge-sheet acceptance of final report in pursuance of further investigation before cognizance was taken by' Court is permissible.

 

Abul Kashem Shawdagar Vs. Abdur Razzaque (1984) 36 DLR 63.

 

—Words "final report" or 'charge-sheet' are hot in section 173. Under this section police can submit a police report either for prosecution or release of the accused persons. Abdus Salam Master Vs. State (1984) 36 DLR (AD) 58.

—There being no scope in the scheme of the Criminal Procedure Code to direct the Investigating Officer to submit any supplementary charge-sheet on the basis of the materials on record what he had collected during investigation the impugned order is ex facie illegal and has been passed without any legal authority and this being an abuse of the power of the Court is liable to be quashed. Abdus Salik alias Sarkumullah Vs. The State (1983) 35 DLR 425.

 

—Police submitted charge-sheet in respect of the accused and final report in respect of several others—Magistrate accepting the^ police report passed an order of discharge in respect of those dealt with in the final report—On naraji petition, filed by the complainant, the Magistrate directed the police to submit a supplementary charge-sheet for a graver, offence for all including those discharged earlier, Held: Magistrate's direction is illegal and has to be quashed. Abdus Salik alias Sarkumullah Vs. The State (1983) 35 DLR 425.

 

—Police after submitting a charge-sheet can not re-investigate the same occurrence and then file a final report.

 

Abul Kashem Shawdagar Vs. Abdur Razzaque (1984) 36 DLR 63.

 

—Further investigation under section 4{IA) of Bangladesh Schedule Offence(ST) Order (50/72) means collection of additional evidence and not re-investigation. The police after submitting charge-sheet against a person cannot re-investigate the case against that person treating the charge-sheet as cancelled.

 

State Vs. Abul Kashem (1975) 27 DLR 342.

 

—The "police report"—this expression in s. 173 means either of the two, that is charge-sheet or "final report". Both "charge-sheet" and 'final report' means the "police report" within the meaning of section 173 of the Code of Criminal Procedure submitted by the police on conclusion of an investigation. Kid. Zillur Rahim Vs. Nazmul Karim Suff (1976) 28 DLR 1.

 

Charge-sheet   and    final   report    :

Charge-sheet is submitted when the accused is sent up for trial. Final report is submitted when police finds no case against the accused. Magistrate may direct further enquiry if he does not accept the final report or he may take cognizance of the offence u/s. 198(b). Abdul tfuq Vs. State (1977) 29 DLR 427.

 

—Charge-sheet may be submitted in a particular, case even when a final report has been submitted, if found necessary, on fresh evidence. KhorshedAlam Vs. State (1975) 27DLR 111.

 

—Further investigation may also.be directed where some accused have been sent-up and in respect of some other a final report has been- s-ubmitteoV Further investigation may also be directed where it is found that more crimes have been committed by an accused who has been already sent-up. State Vs. Abul Kashem (1975) 27 DLR 342.

 

—Charge-Sheet  submitted—Competent Court    not    yet    taken    cognizance— Interference   at   the   stage    by   way   of quashing not  permissible. The police after completing investigation in the case alleging cognizable offence submitted charge-sheet, and Sub-Divisional Magistrate only issued warrant of arrest against the accused. — The case is yet to be sent to the appropriate Court for trial after taking cognizance. It is an established principle that ordinarily proceedings instituted alleging criminal offence must be tried in accordance with law, and the same should not be interfered with at an interlocutory stage or even at the early stage in exercise of the inherent jurisdiction of the High Court under section 561 A of the Code. Of course, facts of a particular case may call for interference under section 561A of the Code where even on the admitted facts no criminal case stands against the accused and further prolongation of the prosecution would amount to harassment to an innocent person, that is, abuse of the process of the Court.

 

Bangladesh Vs. Tan Kheng Hock (1979) 31 DLR (AD) 69.

 

—Abul Hossain's case discussed.

In Abul Hossain's case (1962) 14 DLR S.C. 96 it has been held that once a Magistrate passes an order of discharge he,exhausts his jurisdiction so far as proceedings before him are concerned and he becomes functus officio., because to hold otherwise would amount to giving the Magistrate a power of review which power he does not possessunder the Code.

 

In the case it has been further held that a second prosecution is permissible if the order of discharge was not passed on merits after recording of the evidence in full compliance of the provisions of sections 252 & 253.

 

It was also held that if cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all, and that in a proper case an application for revival may amount to a fresh complaint.

 

Question before us as to whether the decision in Abul Hossain's case will cover an order passed by a Magistrate discharging an accused on submission of a final report by the police without investigation of the case and whether fresh investigation of the case can be made by the police of their own or under the order of a Magistrate.

 

Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.

 

—Before taking cognizance, there is no scope to say that the charge-sheet will lead to abuse of the process of the court— because the court has ample power to refuse taking cognizance of the offence on the facts disclosed in the police report. After cognizance is taken on the basis of the charge-sheet and on a proper occasion for quashing the proceedings, certainly the High Court should examine the charge-sheet to ascertain as to whether the allegations made therein constitute a criminal offence. But before cognizance is taken by the appropriate Court, there is hardly any scope for saying that charge-sheet would lead to abuse of the process of the Court, because the Court competent to try the case has ample power to refuse taking cognizance of the offence on the facts disclosed in the police report and pass an appropriate order.

 

From the judgment it also appears that the High Court in quashing the proceedings made remarks that there is no evidence whatsoever to support the prosecution case that the goods on board the vessel were about to be unloaded from the vessel concerned. This remark is undoubtedly premature, inasmuch as the stage for recording evidence was yet to come, and that stage would come only after cognizance of the offence was taken by the court. Bangladesh Vs. Tan Kheng Hock (1979) 31 DLR (AD) 69.

 

—Investigation ended in a charge-sheet: That cannot be reopened. We are not aware of any "principle of law" under which an investigation which has resulted in submission of a charge-sheet against the accused can be re-opened. The principle of law explained by Jenkins and Carnduf, JJ. relates to the particulars of the accused and the offence allegedly committed by him which shall be set forth in the police report under section 173 Cr.P.C. Sub-section(2) of this section provides for further investigation under certain circumstances. It appears that the learned Sessions Judge confused between further investigation and re-investigation. State Vs. Abul Kashem (1975) 27 DLR 342,

 

—Police enjoys the unfettered right on an investigation, to submit either a charge-sheet or a final report in a particular case, without any interference from the court, Decision as to whether a final report or a charge-sheet should be submitted in a particular case rests with the Police Officer concerned. The Code does not seem to have empowered a Magistrate or a Special Judge, competent to take cognizance on police report to interfere with the decision of the Police Officer after he has submitted his report under section 173 of the Code and any direction to a Police Officer to submit charge-sheet after final report has been submitted or to submit a final report after charge-sheet has been submitted, will be illegal. Law enjoins upon a Police Officer the duty of investigation into a crime. In the discharge of the said statutory duty he has to embark upon a quest for the discovery of truth and in this quest he may chance to come across new and vital information which may have eluded him earlier and which may, in his opinion, provide the clue to the unfolding of truth, in the circumstances it would amount to putting a clog in the due discharge of function of a Police Officer if he is debarred i entering; into fresh investigation, on his own and submitting charge-sheet, if necessary, although a final report had been submitted earlier. Rule 277 of the Police Regulations confers upon the Police such powers. Khorshed Alam Vs. State (1975) 27 DLR 111.

 

—If final report is filed by the police, Magistrate nevertheless may direct further investigation by police. In the case where the police has submitted a "final report" under section 173, the Magistrate may instead of accepting it, either of his own accord or on an application generally a naraji-petition by any interested person, direct the police to make further investigation so as to collect evidence warranting the sending up of the accused for trial.

 

State Vs. Abul Kashem (197.5) 27 DLR 342.

 

—There is no bar to the Police submitting a1 challan in respect of offence (whether cognizable or non-cognizable) other than that mentioned in the F.I.R. if the same comes to its notice during investigation. Equally a Magistrate is competent to take cognizance of such offence on the basis of police report under section 190 of the Code.

 

Ghulam Md. Vs. Muzammul Khan (1967) 19 DLR (SC) 439.

1861

Constitution of Pakistan, 1962 -20

Citation: (1963)15 DLR (WP)23, 6 DLR (WP) 133, (1964) 16 DLR 224, (1959) 11 DLR 296 = (1960) PLD (Dae)13, (1950) 2 DLR 246, (1960) 12 DLR 274, Md. Baharuddin Vs. State (1957) 9 DLR 209, (1952) 4 DLR 244, (1957) 9 DLR 40, (1954) 6 DLR (WP) 104, (1952) 4 DLR (FQ5

Subject: Constitution of Pakistan

Delivery Date: 2018-09-12

S.341:  Deaf   and    dumb    accused.

Provisions of the section are limbed to cases where accused cannot be made to understand the proceedings—But where an accused who is deaf and .dumb is made to understand the proceedings through some agency (in this case by the father of the accused) and Court is satisfied as regards performance of duty by father as interpreter—No reference accessary. AIR 1929 Lah. 799,AIR 1929 Lah 840, AIR 1943 Sind, 237 ref. State Vs. Muhammad Ismail Khan (1963)15 DLR (WP). . 23

 

—The powers which the High Court possesses on a reference made to it with regard to the case of an accused who, though not insane, cannot be made to understand the proceedings are given in scc.341. When a case comes before the High Court under that section it is open to the High Court to pass any order it considers fit in the circumstances of the case. Md. Aslam Vs. Crown 6 DLR (WP) 133.

 

—Where from the observations made by the Magistrate, it appeared that the accused, a deaf-mute, could understand the nature of the act imputed to him, that he pleaded not guilty and that, by making gestures he admitted his previous conviction, it appeared that the accused was capable of understanding the proceedings held against him. The case was thereupon returned by the High Court to the Magistrate concerned for passing a suitable sentence .against the accused. PLD (1952) (Lah) 362.

 

S. 342  :

Synopsis

1. Contravention.

2.  Duty of Court.

3. Object of section. .

4. Prejudice.

5. Purpose of examination.

6. Miscellaneous.

 

1 .    C o n t r a v e n t i o n

Examination of the accused—Omission to draw specific attention of the accused in his examination to incriminating circumstances in the evidence vitiates trial. Ashrafuddin Vs. State (1964) 16 DLR 224.

 

—Accused should specifically be asked if they have any defence evidence to adduce. Where no such inquiry has been made the trial from the state of examination under section 342 stands vitiated. Failure of the Court to ascertain from the accused whether they have, any defence to offer renders the conviction illegal. The proper way of examination under section 342 is to put the salient circumstances and features of the evidence to the accused persons and then ask them to give their explanation, if any, for the same. Thereafter, they must be asked if they wished to adduce any defence evidence. MoksedAli Molla Vs. State (1959) 11 DLR 296 = (1960) PLD (Dae).. 13

 

—Where in violation of the mandatory provisions of section 342, the Magistrate did not examine several accuseds individually but recorded their joint statement, the conviction was illegal. Mujibur Rahman Vs. Fazlur Rahman, (1950) 2 DLR 246.

 

—Defence witnesses examined before the examination of the accused under section 342. The judge should not have examined the defence witnesses before close of the prosecution case, but, unless it is'shown that the accused was in any way prejudiced by examination of the defence witnesses before his examination under section 342 it cannot be said that mere non-compliance with this procedure would vitiate the trial. In every case the Court should construe the gravity of the irregularity or omission, and whether it might have worked actual injustice to the accused. hharul lloq Vs. State (1960) 12 DLR 274.

 

—Failure to examine the accused about his confession will not render the conviction illegal, if there are other evidence in support of it. Md. Baharuddin Vs. State (1957) 9 DLR 209.

 

—Failure to comply strictly with the provisions of section 342 in questioning an accused person for the purpose of enabling him to explain any circumstances appearing in evidence against him does not inevitably mean that the conviction should be set aside and the case remanded for re-trial. Whether a re-trial is called for or not depends on the circumstances of each particular case. Shahidul Alton Vs. Crown (1952) 4 DLR 244.

 

—Failure to ask the accused in his examination under section 342 about his absconding after the occurrence but asking the jury that they should consider his conduct after the occurrence causes prejudice. Abdul Aziz Vs. State (1957) 9 DLR 40.

 

—Although it is not obligatory for a Magistrate to re-examine an accused person under section 342 after the Magistrate has examined Court witness under section 540 of the Criminal Procedure Code, yet where the witnesses examined were not formal witnesses nor was their evidence immaterial, the accused should have been re-examined and afforded an opportunity of making any. statement with regard to the evidence of these witnesses. 53 .CWN(1 DR)35.

 

—One prosecution witness examined after charge—Accused not questioned as to such witnesses evidence—Illegality not cured by section 537. Altaf Hussain Vs. Crown 2 PCR 277.

 

—Accused examined by the committing Court on all relevant circumstances—before the Sessions Court, the accused was not examined on circumstances appearing against him but on being asked admitted that his examination as recorded by the committal Court was correct and slated that he did not want to add anything—This is not a sufficient compliance with the provisions of section 342.

 

Failure to xomply with the provisions of section 342 will not always vitiate the trial since not every contravention of section 342 constitutes a departure from the mode of trial. Muhammad Shaft Vs. Crown (1954) 6 DLR (WP) 104.

 

. —When a Magistrate acts under section 342 he knows what the evidence against an accused person is and what its effect would be on his decision if it remained unexplained. From the nature of the case, the Magistrate has to draw the pointed attention of the accused to the facts deposed to in the evidence which tend to incriminate him, and this the Magistrate can only do by asking the accused for an explanation of the said evidence about them. Wall Muhammad Vs. Crown (1951) 3 DLR 505 (510).

 

—Confession    and    section    342.   The failure of the trial Court to question the accused about his confession would amount to an infringement of the provisions of section 342 and the confession will have to be excluded from consideration in determining the guilt of the accused. Rahim Baksh Vs. Crown (1952) 4 DLR (FQ53.

 

—Accused examined fully under section 242 Cr.P.C.—Omission to examine again fully at the close of prosecution evidence under section 342— Not fatal to trial in absence of prejudiceduhammad Yaqub Vs. Crown PLD (1956) (Lah.) 174.

—Where the accused person was not asked to. explain the circumstances appearing against him, the mandatory provisions of section 342 Cr.P.C. cannot be said to have been complied with. PLD (1950) (Lah.) 239.

 

2.       Duty    of   Court

Court witnesses examined after examination of the accused under section 342—Accused should be examined under section 342 once again where the Court witnesses deposed to something important. Md. Mohajan All Sarker Vs. King (1951) 9 DLR 374.

 

—For the purpose of enabling the accused to explain any circumstances appearing in trie evidence against him, he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

 

It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. Aminul Iluq Vs. Crown (1951) 3 DLR (FC) 518.

 

—When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point and to ask for an explanation. The whole object of enacting section 342 is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. Aminul Iluq Vs. Crown (1951) 3 DLR (FC) 518.

 

—It is true that section 342 was not intended for the purposes of cross-examining the accused or for filling up gaps in the case for the prosecution. But it is no less a serious error to go to the opposite extreme and, by excess of restraint, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which arc relied on by the prosecution as establishing the case against him. Aminul Iluq Vs. Crown (1951) 3 DLR (FC) 518.

 

—Examination of the accused on his confession. Where the conviction is sought to be based mainly on the confession of the accused, the attention of the accused must be drawn to such a confession and he must be given an opportunity to give his explanation with regard to the main aspects thereof. It is not sufficient to have not merely asked if he did or did not make a confession. It should be put to him as, to whether he had or had not confessed in a particular manner. Slate Vs. Abdur Rahim Sikder (1958)10 DLR 61.

 

—If a point arose in the evidence against the accused which the Court considered vital, it was the duty of the Judge to call the attention of the accused to the point and to ask for an explanation. Crown Vs. Abdul Kuddus (1953) 5 VLR 52.

 

—Examination of the accused under section 342 is mandatory both in warrant as well as in summons case. Jalil Bux Vs. Anu Mian (1957) 9 DLR 73.

 

—Any point on which the conviction is sought for to be based must be specifically put to an accused person in order to enable him to explain the allegation made against him; Abdul Sattar Vs. Crown (1956) 8 DLR (WP) 53.

 

—While examining the accused u/s. 342, his attention as to his confession should be drawn by the Court. Safar All Vs. The State (1984) 36 DLR 185.

 

—Compliance with the provisions of section 342 is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside. The important clement in the prosecution ease which need some explanation from the accused should be put to him. Abdus Salam Vs. Crown (1955)7 DLR (FC) 137.

 

—An accused person has to be given an opportunity under the law to explain the evidence on which his conviction is sought to be or going lobe based. It is not sufficient compliance with the letter of law that the accused should understand the implications of questions put by the Court. There arc to be no implications and no mental reservations under section 342 Cr.P.C. Inayai Hossain Shah Vs. Crown PLD (1955) (Sind) 256.

 

—The section casts a duty on the Court to place before the accused facts appearing in evidence against him to enable him to offer his explanation—Non-compliance prejudices the accused—Court's duty when trying a criminal case. A.S.M. Afzal Hossain Vs. The State (1976) 28 DLR 103.

 

—The proper course for the Magistrate while he has been examining the accused under section 342 Cr.P.C. is to ask the accused if he would adduce any evidence. Khelafat Hossain Vs. Rafiuddin Biswas.(1977) 29 DLR, 388.

 

3.    Object   of   section Principle   underlying   the   section

Compliance   essential. ' Where while examining the accused under section 342, "the circumstances appearing "in evidence against him" are not put to him and his explanation is not taken thereupon, it cannot be said that the purpose of sec. 342 has been fulfilled. It is not a mere formality, but is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. Abdul Wahab Vs. Crown (1955) 7DLR(FC)87.

 

—The real object of section 342 is not to subject the accused to a detailed cross-examination. It is, as a matter of fact, inviting his attention to the point, or points, in the evidence which arc likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and, before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any. Abdul Wahab Vs. Crown (1955) 7 DLR (FC) 87.

 

—Ss.342 and 276: Case tried summarily under article 2(4) (e) of P.O. 50/72 and the accused convicted and sentenced to 3 years R.I. and fine— Substance of the accusation not read out to him nor he was examined u/s. 342 of Cr.P.Codc—These are mandatory provisions even in summary trial and non-observance of which vitiates the trial.

 

Summary procedure docs not dispense with the compliance of mandatory provisions as to the trial of a criminal case. Samuj All Vs. State (1976) 28 DLR. 13

 

4.    Prejudice

—Failure to ask the accused whether he will adduce defence evidence-Not prejudicial to the accused, if he is not thereby misled. Bonez Bapari Vs. Slate (1960) 12 DLR 609 =(1961) PLD (Dae) 148 = (1959) 11 DLR 295 Distinguished.

 

, —The prosecution case is that in the matter of the export transaction the accused appellant acted as the agent of A on the basis of a power of attorney executed by the latter and (this document was) deposited in the Customs office.\

 

It was thereupon argued that since this document i.e. the power of attorney was really the one on which the appellant's conviction is founded, and as he denies execution of this document he ought to have been afforded an opportunity to offer his explanation in respect of the same when examined under section 342, Cr.P.Code, and that the omission to afford such an opportunity has caused serious prejudice to him,

Held : Omission to question the appellant regarding the power of attorney during his examination under section 342 has resulted in serious prejudice to iiim. Md. Ilussain Talukder and others Vs. Stale (1960). 12 DLR 818 = (1961) PLD (Dae) 434.

 

—Where no prejudice can be said to have been caused to the accused even if it be held that the provisions under sec. 342 arc not complied with as fully as they should have been, such irregularities cannot vitiate the trial. Ibrahim Baksh Vs. the Crown (1955) 7 DLR (FC) 123 (132).

 

—Provisions not complied with— Prejudice. Where the provisions of section 342 were not duly complied with but it appears that the accused was literate and could very well follow the nature of the proceedings against him, and was also aware of the prosecution case and no miscarriage or failure of justice has been proved in the case, section 537 would cover it, and, for that reason, no interference is called for by the Federal Court. Abdul Wahab Vs. Crown (1955) 7 DLR (FC) 87.

 

—Confession—Prejudice. Confession being sole support for conviction was not put to the accused—prejudice caused—Conviction set aside. Munwar Ahmed Vs. State (1956) 8 DLR (SC) 157.

 

—Failure of the Magistrate to record the statement of the accused, made under section 342, materially prejudices the accused and this defect cannot be cured under section 537 of the Code. Jalil Bux Vs. Anu Mian (1957) 9 DLR 73.

 

—It is not every violation of section 342 that calls for a re-trial. It is to be seen whether prejudice has been caused or is likely to be caused to the accused person himself. Obaidul lluq Vs. Crown (1954) 6 DLR 526.

 

—Sessions Judge failing to put such questions to-the accused as might have enabled him to explain any circumstances appearing in the evidence against him but asking him merely whether he had made the statement (which was read out to him) before the committing Magistrate and whether he wanted to add anything to it—trial not vitiated unless failure results in causing prejudices to accused or failure of justice. PLD (1953 (Lah.) 14.

 

—Where, in a summons procedure case, the accused, at the start of the trial, was put a question embodying fact which did correctly state the prosecution evidence, was asked only formal questions; and besides, the whole of the prosecution and defence evidence was recorded on the same day.

 

Held : It could not be said that the accused had not been prejudiced by the procedure adopted by the Special Judge. The case was, therefore, remanded for retrial from the point where the accused was to be examined under section 342. PLD (1955) (Lah) 661.

 

Complaint about failure to duly examine the accused u'/s. 342—Failure must prejudice him. Shahadat llossain Vs. Slate. (1987) 39 DLR 72.

 

—Non-recording of accused's, statement u/s 342 should be treated prejudicial to the accused—retrial ordered. Even if it be taken that those accused appellants were examined under section 342 Cr.P.C., non-recording of their, statements by the learned Additional Sessions Judge cannot but be prejudicial to .those accused.

 

And as such retrial of the accused appellants from the stage of examination under section 342 Cr.P.C. is necessary. Abdul Karim Vs. The State (1981) 33 DLR 191.

—Circumstance brought out in evidence against the accused, not put to him under section 342—Such defects prejudice the accused. The peculiar circumstances present in the instant case arc that the accused made a confession before a competent Magistrate and that the hand-writing expert opined that the impugned signature in the relevant cheque is that of the accused. Besides, there is also some circumstantial evidence to the effect that the accused was seen imitating the signature of the Divisional Forest Officer. It was in these circumstances it is obligatory on the Court to put all these circumstances to the accused when he was under examination under section 342 but this the Court failed to do. It can hardly be said that the serious defects in the examination under section 342 have not prejudiced the accused.

 

The opinion of hand-writing expert docs not infallibly prove forgery when it is to the effect that the questioned writing was that of this accused. Jqfar Alam Chowdhury Vs. The State, (1968) 20 DLR 666.

 

5.    Purpose   of   examination

—The examination under section 342 reads as follows. "The charge against you is that on the 22nd Jaistha 1366, B.S., you unlawfully assembled with others for the purpose of assaulting Abdul Awal and his witnesses and you yourself with other accused assaulted the compfainanfwith lathics and lhat by reason of the lathi blows Abdul Majid witness No. 2 got his middle finger injured and broken. You. have heard the evidence on those points. What have you to say ? Ans. I am innocent."

 

Held : The above examination discloses that the accused was not asked as to whether he would like to bring forward his witnesses or had any defence to make. Failure of the Court to ascertain from the accuseds whether they have any defence to make renders the conviction illegal. Majibur Rahman and others Vs. Slate (1960) 12 DLR 586 = (1961) PLD (Dae) 96 = (1959) 11 DLR 296 fol.).

 

—Accused's examination. When an accused person is examined under section 342, the object of the examination is to enable him to explain any circumstances appearing in the evidence against him, the Magistrate being under a clear obligation to question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. From the very nature of the case, the Magistrate has to draw the pointed attention of the accused to the facts deposed to in the evidence which tend to incriminate him, and this the Magistrate can only do by asking the accused for an explanation of those facts and the evidence about them. Aminul Iloque Vs. Crown (1951) 3 DLR (FC) 518.

 

—When it is not possible to arrive at any conclusion that the accused person acted, as he alleges he did, on consideration of his own statement alone, it is necessary to place his evidence alongside other evidence and circumstance of,the case and then come to a conclusion. Safder All Vs. Crown (1953) 5DLR 107 (FC)

—The object of examining the accused under section 342, is to draw his attention to the special points in the evidence on which the prosecution claims that the case is made out against the accused so that he may give such explanation as he desires to give. The directions given by their Lordships of the Federal Court on the point in the case of Rahim Bakhsh Vs. Crown (4 D.L.R. 53) and Aminul Hoquc Vs. The Crown (3 D.L.R. 518) must be followed. Moftzuddtn Vs. the Crown (1954) 6 DLR 141.

 

— Circumstantial evidence— examination must be thorough. Where the case against an accused person is based on circumstantial evidence, his examination must be thorough in order to afford him all possible opportunity to explain the charge and the circumstances of the case against him. The examination is also intended to assist the Court in arriving at the truth. Idris Vs. Crown 2 PCR 91.

 

—Questions under the section may be put to the accused at any stage of inquiry or trial offering an opportunity to explain any matter affecting him—After examination of PWs and before the accused enters into his defence. The Court shall examine him for the said purpose. KM. Zaker Hossain Vs. State (1977) 29 DLR 250.

 

—Examination of accused u/s. 342 is mandatory—Purpose .of such examination—Failure to duly comply with the provisions of S.342 may vitiate the trial only when such failure has prejudiced the accused in his defence. Abdur Razzaque Vs. State (1976) 28 DLR 35 (Appl. Divn.)

 

—Conviction based on extra-judicial confession—Such confession not put to the accused while examining him under section 342 Cr. P.C— Conviction set aside. Abul Ilossain Miah Vs. The State, (1971) 23 DLR 58.

 

6 .    Miscellaneous

—Matter appearing in evidence against the accused should be put to him. Mukbul Ahmed Vs. Slate (1961) 13 DLR 407 = (1951) 3 DLR (FC) 518 = (1956) 8 DLR (FC) 87 = (1954) 6 DLR 161 = 6 PLR (Dae) 335 rel.)

 

—Once the defence asked if he would produce defence evidence—fresh enquiry under section 342 of the same question unnecessary. It is sufficient if it appears that the trial Court had in fact asked the accused as to whether he would examine any defence witness and such a query may become unnecessary when the accused person himself intimates to Court at the close of the prosecution evidence that he docs not propose to adduce any defence evidence. Ayaj AH Vs. State (1961) 13 DLR 779 = (1962) PLD (Dae) 223.

 

—Conviction on accused's confession without calling his attention under the section—illegal. It would be most unfair to an accused, and it amounts to a violation of fundamental principle of natural justice if the accused is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court. Rahim Baksh Vs. Crown (1952) 4 DLR (FC)53(59).

 

—The failure of the trial Court to question the accused about his confession would amount to an infringement of the provisions of sec. 342 and the confession will have to be excluded from consideration in determining the guilt of the accused where such a confession or admission is the whole basis of the judgement convicting the accused. The failure to question him about it must be held to have prejudiced his case substantially. Rahim Baksha Vs. Crown, (1952) 4 DLR (FC) 53 (59).

 

—A confession docs .not cease to be admissible only because the accused, when examined under section 342, was not specifically questioned about the confession. In such a case, the Appellate Court will have to consider whether the omission occasioned any prejudice to the accused. Rahim Baksh Vs. Crown (1952) 4 DLR (FC) 53 (59).

 

—When the statement in the petition and arguments on behalf of the accused make it clear that the accused denies as having made any confession, the accused, even if specially questioned about the confession under section 342, Cr.P.C., would have also denied the confession. The Privy Council's decision in Dwarika Nalh Vs. Emperor (A.I.R. 1936 P.C. 124) is not an authority for the absolute rule that where an accused person has not been questioned about an incriminating fact, the evidence as to that fact can never be accepted by Court. Rahim Baksh Vs. Crown (1952) 4 DLR (FC) 53 (59).

 

—Failure of lhe.Sessions Judge to question the accused under sec. 342 with regard to the confession does not render the conviction invalid where the prosecution does not rely on the confession as being other than a circumstance in the story which led to the discovery of the deceased's body, but for the purpose of proving actual murder, relied on the evidence of the witnesses who witnessed the assault. Kala Mia Vs. Crown (1953) 5 DLR 142.

 

—When a court finds that the mandatory terms of section 342 have been infringed, it cannot concern itself with a hazardous proceeding of speculating as to what use the accused persons would have made of the legal right to an opportunity to explain every piece of evidence weighing against him had it been allowed to him. ABdul LatifVs. Crown (1950) 2 DLR (FC) 431.

 

—Failure to examine after examination of Court witness. Where in a trial, after the arguments were heard, a witness though nominally examined as a Court witness but who was in reality a prosecution witness and his evidence was materially in favour of the prosecution and relied on as such, though it is not obligatory on the Magistrate to examine accused afresh under section 342, he would yet have been well-advised lo follow that course. Abdus Samad Vs. Crown (1951) 3 DLR 132.

 

—Several accuseds questioned jointly—illegal. A Magistrate acts in direct violation of the provisions of section 342 when under that section, he questions the accused persons ; and records a joint statement. Section 342 requires that in examining the accused persons thereunder each of the accused shall be questioned individually. Pandilulla Fakir Vs. Moniruddin Molla (1952) 4 DLR 307.

 

—Even in a case tried summarily, whether warrant or summons, the provisions of section 342 of thcCr.P.Codc are applicable. Main Vs. State (1978) 30 DLR 421.

 

—Examination of the accused on the conclusion of prosecution evidence is mandatory. Malu Vs. State (1978) 30 DLR 421.

 

—Incriminating piece of evidence alone to be mentioned while examining the accused under section 342.

The High Court in the present case found that a sum of Rs. 4l3/-which was advanced by the accused to the Union Council was due to him. The charge against the accused being misappropriation of the Council's fund it was contended that this should have been mentioned by the Trial Court during the examination'under section 342 of the Criminal Procedure Code.

 

Held: The contention is based upon a misconception. The amount which the Union Council owed to the" petitioner was not an incriminating piece of evidence against him upon which he was convicted and in consequence, it did not call for an explanation from him. Jamdhar Khan Vs. The State (1975) 27 DLR (AD) 35.

 

—Circumstances when a court can take the statement u/s. 342 into consideration to determine the question of guilt of an accused. Nazmul Huda Vs. State (1974) 26 DLR 184.

 

—Unless a circumstance appears in evidence against an accused person, he cannot be questioned about it and if any such question is put' to him and •in reply he admits the existence of that circumstance, the statement, even if it amounts to a confession, cannot be acted upon at the trial. PLD (1950) (BJ.) 5.

 

—If no evidence has been produced by the prosecution and consequently no circumstance has appeared in the evidence against the accused person, the Magistrate- cannot ask the accused to make a statement. PLD (1953) (Pesh) 40.

 

—One of the accuseds was charged with many others under sections 147 and 448 of the Penal Code, with an additional charge u/s. 304 of the Code but when he was examined u/s. 342 Cr. P.C. he was not told that he was facing trial u/s. 304 in addition to common charge under sections 147 .and 448. As such his conviction u/s. 304 is illegal. Joynal Abedin Vs. The State (1985) 37 DLR (AD) '113.

 

—Confession not put to the accused cither by the committing Magistrate or the Sessions Judge— Conviction unsustainable. PLD(1952) (Lah) 374.

 

—The statement under section 342 before the trial Court has to be taken in conjunction with the statement made by accused in the committing Court. Salimullah Khan Vs. Crown (1954) 6 DLR

527.

 

—The proper course for the Magistrate while he das been examining the accused under S. 342 Cr P.C is to ask the accused if he would adduce any evidence. Khelafat Hossain Vs. Rafiuddin Biswas-(1977) 29 DLR 388.

 

—The committing Magistrate and Sessions Court making no reference to it i.e. confession in their examination of the accused. The confession may either be ignored by the Appellate Court or the case may be remanded for retrial from the stage of defective examination of the accused. 5 PLD(Lah.) 10.

 

—Pleaders examined on behalf of the accused. The examination of the accused's pleader under section 342 in his absence not permissible by law. Lai Mia Vs. Grown (1955) 7 DLR 357.

 

—Where the accused is exempted from appearance in Court under section 205 of the Code of Criminal Procedure and is permitted to be represented by a pleader, the latter can be examined under section 342 on behalf of the accused and this procedure involves no illegality or even irregularity. Crown Vs. Jahan Dad (1954) 6 DLR (WP) 17.

 

—The law, it is true, provides for a trial to proceed in the absence of the accused (vide section 540-A) but the section does not permit the trial to proceed without the presence of the accused at stages where, under the law, the presence of the accused is imperative. One of these stages is when the accused is required to be examined in accordance with the provisions of section 342. The Court cannot dispense with the presence of the accused at this stage. Arshad Mirdha Vs. Tansaruddin Molla (1952) 4 DLR 429.

 

S. 342:—Accused's statement in court should be taken into consideration in its entirety, if conviction is to be based solely on such statement. Rahim Bux Vs. -Crown"(1952) 4 DLR 53 (61).

 

Ss. 342 and 537:—Failure to draw the attention of the accused to the incriminating evidence under section 342 is curable by s. 537 Cr.P.C. Majibur 'Rahman Vs. State. (1987) 39 DLR 437.

 

S.344:—When Sessions Judge may postpone or adjourn the proceedings. If prosecution witnesses are absent on the date fixed for the examination of witnesses, the Sessions Court has to see whether an adjournment is necessary or advisable. Section 344 Cr.P.C. enables the Sessions Court to postpone or adjourn the proceedings.

 

Public prosecutor is under no obligation to procure P.W's. attendance in Court. A Sessions Court cannot direct the Public Prosecutor "to manage the attendance of witnesses on the date fixed." The Public Prosecutor is under no legal obligation to procure the attendance of P.Ws. If the Public Prosecutor fails to obey such an . order of the Sessions Court, he cannot be found fault with. Md. Taheruddin Vs. Abul Kqshem (1985) 37 DLR 107.

 

1862

Constitution of Pakistan, 1962 -21

Citation: (1960) 12 DLR (WP) 53: (1960) PLD (Lah) 498, (1959) 11 DLR (WP) 127 = (1959) PLD (Kar) 157, (1957) 9 DLR (WP)7, PLD 1951 (Pesh) 57, (1970) 22 DIM (WP)37, (1970) 22 DLR 502, (1973)25 DLR 330, (1968) 20 DLR 674, (1986) 38 DLR 132, (1987)39 DLR 303, (196

Subject: Constitution of Pakistan

Delivery Date: 2018-09-12

—•Magistrate cannot go on adjourning a case under this section indefinitely.

Magistrate cannot go on adjourning a case under section 344 indefinitely. The proper course for a Magistrate is to record some evidence and then determine in the light of such evidence, if a prima facie case has been made out against the accused. He can then adjourn the case if there is hope of further evidence connecting the accused with the offence coming up before him. Hatnid llossain Vs. State: (1960) 12 DLR (WP) 53: (1960) PLD (Lah) 498.

 

—Remand can only be made when the court has already taken cognizance of the case. Prosecution cannot ask for remand without submitting a report under section 190(1) (b) where cognizance of the offence is taken on a police report. State Vs. Samiullah Khan (1959) 11 DLR (WP) 127 = (1959) PLD (Kar) 157.

 

—Conditions necessary to be fulfilled before an order remanding an accused is made. In order to obtain remand of the accused under section 344 the following conditions are required to be fulfilled; (I) Some evidence should be adduced before the Court which should be sufficient to raise a suspicion of the accused's guilt, and the Court should be assured that further evidence to strengthen suspicion into belief is expected to be collected. (2) A police report in writing of facts, as is required under section 190(1) (b), constituting the offence must also be produced to enable the Court to take cognizance, of the offence. (3) If the nature of the case is such that no cognizance can be taken of the offence without previous sanction, then such sanction should be produced to enable the Court to take cognizance of the offence. State Vs. Samiullah Khan. (1959) 11 DLR (WP) 127 = (1959) PLD (Kar) 157.

 

—Long   adjournments  of proceedings.

Long and recurrent adjournments on the prosecution prayer to produce a co-accused or witnesses are improper. Crown Vs. Piru(1957) 9 DLR (WP)7.

 

—Adjournments granted extending over 2-1/2 years for production of co-accused from jail-Frequent transfers of the case and long and frequent adjournments for production of prosecution evidence—case pending for 6 years—Proceedings quashed. PLD (1955) (Sind) 227.

 

—Accused kept in lock-up after expiry of fifteen days without express authority of Court is entitled to be released on bail. PLD 1951 (Pesh) 57.

 

—Prosecution witness remained absent from the previous hearing and no action taken against him—Meanwhile the case was transferred to another Magistrate and the witness not served with fresh notice—Refusal of trial Magistrate to allow an opportunity (adjournment) for v production of such witness—Not a proper exercise of powers under section 344 of the Act. K.B. Ch. Ghulam Ahmad Vs. G.L. Whitely. (1970) 22 DIM (WP)37.

 

—Stay of criminal proceedings pending decision of civil suit. Question of staying further proceedings should always be decided by the facts, circumstances and nature of criminal case and civil suit pending between the parties-Stay of criminal proceeding for indefinite period pending decision of civil suit is undesirable—Where decision in civil suit is likely to render prosecution of the accused infructuous, reasonable time may be allowed—Criminal case not to be stayed on fancy desire of interested party. Basiruddin Vs. Osmm Gam, (1970) 22 DLR 502.

 

—An adjournment or postponement of a criminal case for an indefinite period is not'in accordance with the provision of section 344 or any I other provision of the Code of Criminal Procedure, I Tarini  Chandra  Chakravarty  Vs.  Sana Mia, I (1973)25 DLR 330.

 

—Sine die postponement of criminal proceedings pending decision in civil court. Section 344 docs not provide for an adjournment sine die. An order for indefinite adjournment is not in accordance with law.

The civil Court will take time in the disposal of civil suit and civil Court's decision will not dispose of all questions. Therefore indefinite postponement of criminal case is undesirable, particularly when it is uncertain how long the civil Court will take to dispose of the suit. Khalilur Rahman Vs. Md. Idrish, (1968) 20 DLR 674.

 

—Indefinte postponement of a criminal case is against the policy of law. Mrs. Shahar Banoo Ziwar Vs. Mrs. Wahida Khan. (1986) 38 DLR 132.

 

—No stay may be granted sine die or for indefinite period.—Pending the decision of civil suit, no stay for an indefinite period or sine die can be given in respect of criminal proceeding. Rafique Akmed Vs. Badiul Alam. (1987)39 DLR 303.

 

—Adjournment cost should not be awarded to place obstacle on the defence. The criminal Courts are empowered to order the accused, if he asked for an adjournment to pay costs to the complainant, but this power should not be exercised in such a way as to place obstacle in the way of the accused properly defending himself. The petitioner in the present case had a reasonable ground to pray for an adjournment and having regard to such circumstances the order of payment of adjournment cost to the tune of Rs. 170/- in favour of the State was made in a manner so as to place an obstacle in the way of the accused persons to defend themselves and in such view of the matter the order should be set aside. Manzoor Hossain Vs. The State, (1968) 20 DLR 363.

 

S.345:—Compounding of certain class of offence—law encourages compounding of such offence. Offence compoundable (i.e. one u/s.325 Penal Code) with the permission of the court was compounded by the parties for setting a long-standing dispute—valid in law, nothing wrong, Md. Joynal Vs. Md. Rustam Ali Mia (1983)37 DLR (AD) 240.

 

—Case under section 420, Indian Penal Code, instituted on Police report—Court granting permission to compound over the head of the Crown—permission held not a judicial exercise of discretion. PLD 1949 (Bal.) 17.

 

8.345(5):—Conviction u/s. 379 Penal Code—Appeal on special leave pending before the Appellate Division against conviction when a petition was moved for permission to compromise the dispute between the complainant and the accused (the parties being iner-rclated)—Compromise petition allowed as law encourages compromise. Abdus Sattar Vs. The State (1986) 38 DLR (AD) 38.

 

5.345(6):—Composition of an offence under section 345(6) has the effect of acquittal. Umar Daraz Khan Vs. Pak. Govt. (1956) 8 DLR (WP) 54.

 

—If the Appellate Court permitted the case (conviction under section 420, P.P.C.) to be compromised, then under section 345, clause (6), he had no alternative but to acquit the accused and set aside the conviction and sentence. If he was refusing to allow the case to be compounded, then he had no alternative but to hear the appeal on its merits and he had no right to say that the compromise was permitted in part merely by reducing the sentence of imprisonment to the period already served. Sahar Ali Vs. Samad Ali (1954) 6 DLR 28.

 

—An offence under section 148 P.P.C, is not compoundable and, therefore, the order of acquittal is illegal. PLD (1950) (Lah.) 86.

 

S.346:— Magistrate directed to try. Case triable both by the Court of Sessions as well as by Magistrate—Magistrate has discretion to commit the case to Sessions Court and not bound to try it himself. Md. HanifVs. Crown (1956) 8 DLR (WP) 21.

S.347:—Commitment under section  347. When after framing charges under Chapter XXI Cr.P.C. the Magistrate at subsequent stage commits some of the accused persons and acquits some others under section 258(1), the order of acquittal passed is under section 258(1} and not under section 209 Cr.P.Code. Abul Hossain Vs. Amatu Md., (1972) 24 DLR 175.

 

S.350:—Defence right to have the witnesses recalled for cross. The case was sent by the High Court for retrial from one Magistrate to another. When the case came up for trial before the new Magistrate, the latter refused the defence prayer for cross-examination of the P.Ws. on the ground that the High Court directed the trial from a certain stage.

 

Held: The accused has the statutory right under section 350 of the Code to recall any of the prosecution witnesses for cross-examination and he could not be deprived of that right by an order of the High Court. Mrs. Akhtar Mumtaz. Vs. Slate (1964) 16 DLR (SC) 174.

 

—Right of the accused under the section. When an accused person exercises his right under section 350, it is open to him to demand only the cross-examination of witnesses already heard by the predecessor of the Magistrate before whom the case is pending and if the Magistrate agrees to such a request, no illegality is committed. Even if the accused had, in the first instance, claimed a re-hearing, it was open to him at a subsequent stage to be content only with the cross-examination of all or any of the witnesses. Golam Rasul Vs. Crown (1954) 6 DLR (WP)60.

 

—Magistrate in justice and equity, though not in law, should ask the accused whether he wants a de novo trial or not. Altaf Hussain Vs. Crown 2 PCR 377.

 

—All proceedings, even before the framing of a charge, must be treated as forming part of the trial. Proceedings before a committing Magistrate, who is succeeded by another Magistrate, cannot be treated as a trial and an accused person cannot, therefore, exercise the right accruing to him under section 350.1952 PLD (BAL.) 39.

 

—Applies only to proceedings before Magistrates—conviction by Sessions Judge on evidence partly recorded by him and partly by his predecessor in office—Trial illegal. 1950 PLD(Lah) 244.                                                ,

—Direction by the Appellate Court to the trial Magistrate to commence trial from the stage of examination of the accused under section 342 violates provision of clause (a) of section 350 (I) and therefore illegal. Badiur Rahman & others Vs. Stale (1961) 13 DLR 842 = (1962) PLD (Dae) 7.

 

—If the accused exercises his right under proviso (a) to section 350 (I) Cr.P. Code, and demands that the witnesses or any of them be re-summoned and reheard, the Court is bound lo grant that request. To the question as to what happens to the proceedings that had taken place in the Court of the predecessor if the succeeding Magistrate 'recommences' the trial as provided in sub-section (I). of section 350, the answer is that the previous proceedings are wiped out the moment the succeeding Magistrate recommences the trial. But if action is taken under proviso (a) to section 350 (I), the previous proceedings arc not wiped out.

 

In such cases, the proceedings that take place in the Court of the predecessor of a Magistrate are left intact and remain unaffected by the exercise of the right under the proviso. Therefore, where the previous Magistrate was transferred after framing charge against the accused and succeeded by another Magistrate who, on the request of the accused, rcsummoncd the witnesses ancl thereafter passed an order discharging the accused.

 

Held: The order passed was not an order of discharge but of acquittal. Bassomal Vs. State (1959) 11 DLR (WP) 18 = (]958).PLD (AR) 468.

—Section 350(1) read with sec. 250E(3). The succeeding Magistrate may in his discretion act on the evidence recorded by his predecessor or partly by his predecessor and partly by him and he is to decide which witness should be recalled for cross. Defence required to submit points, on which it wants to cross-examine any witness whom it wants to recall (which should not be shown to be prosecution). Surath Kumar Biswas Vs. Cecil Sudin Baroi (1982) 34 DLR 305.

 

—Proviso to s. 350 (I) read with s. 250(3). Discretion lies with the trying Magistrate to recall for further cross examination any prosecution witness—Defence to satisfy the court as to necessity of such re-cross-examination. Surath Kumar Biswas • Vs. Cecil Sudin Baroi (1982)34 DLR 305.

 

S.351(I)(b)—-Retrial. Retrial of a case when conviction is set aside by appellate court cannot be ordered to enable the prosecution to bring in better evidence for the purpose of finding the accused guilty of the charge. Mina Bibl alias Amena Bibi Vs. State (1983)35 DLR 243.

 

S.352:—A trial in jai! is not iilegai. Under section 352, the Magistrate who tries the case has a discretion to prescribe the place in which the trial shall be held. There can be a complaint of illegality if it is shown that admittance was refused to lawyers or other persons connected with the case who desired admittance. Nadira Begum Vs. Crown (1950) 2 DLR 80.

 

—The Courts are open to the public under sec. 352. However, if a court sees that certain matters are to be disclosed in the proceedings, the disclosure of which is prejudicial to the interest of the State, the Court can hold its proceedings in camera. 7949 PLD (Lah.)572.

 

—Court's order debarring the public as well as the lawyers (not engaged in the case) cannot be objected to in view of the provisions of the section. No doubt under section 22 of the Legal Practitioners and Bar Councils Act 1965, an advocate has a right to appear, plead and act in any Court or tribunal in Pakistan provided he has been briefed in a case on behalf of a party to the proceedings in any Court of law, but he cannot, as a matter of right, make his appearance in a Court to watch a proceeding in which he has not been duly instructed or engaged by any of the parties to that proceeding. Therefore, an order passed under section 352, either to hold the proceedings in camera or debarring the public in general for witnessing proceeding in a Court shall equally apply to the members of the legal profession. Abdul Rashid Chowdhury Vs. State, (1966) 18 DLR (WP) 154.

 

S.353:—This section cannot be invoked to show that it empowers the Court to dispense with the attendance of the accused. Nalini Kanta Sen. Vs. M. Siddique (1962) 14 DLR. 355.

 

S.356:—Failure to keep the memorandum of evidence in the Judges' own hand does not render trial illegal. All Haider Vs. State (1958) 10 DLR (SC) 199 : PLD 1958 (SC) (Pak) 383 fol.

 

S.356 (3):— Failure to prepare memorandum of evidence. Failure to prepare memorandum of evidence under section 356(3) docs not by itself vitiate proceedings. Anwar Muhammad Vs. Rashiduzzaman. (1959) 11 DLR (WP) 77: (1958) PLD (Lah) 187.

 

S.356:— See under section 200 above. S. Iqbal Hossain Vs. IrshadHossain (1959) 11 DLR (WP) 9.

 

—It is not essential that the Magistrate in his own hand should make a record of a memorandum of examination of the complainant. Anawer Muhammad Vs. Rasiduzzaman (1959) 11 DLR (WP) 77:58 PLD (Lah.) 186.

 

—A Special Judge appointed under the provisions of the Pakistan Criminal Law Amendment Act has to follow the provisions of the section in recording the evidence. Magistrate not complying with provisions— Proceedings set aside and re-trial ordered. PLD (1950) (Lah.) 274.

 

—It is not also mandatory on the Magistrate to record the statements of the witnesses the complainant wants to produce in support of his case. Mere non-compliance with sec. 356 of the Code in proceedings under that Chapter does not vitiate the proceedings of the Magistrate. 5. Iqbal Hossain Vs. IrshadHossain (1959) 11 DLR (WP) 9 : 1958 PLD (BJ) 9.

 

S.357:-^Direction under section 357 can dispense with the necessity of keeping memorandum in die hand of the presiding officer of the Court. It may be that the Legislature, while providing for the memorandum to be prepared in the hand of the presiding officer in case the evidence is recorded " in his presence and hearing and under his personal direction and superintendence", did not contemplate the preparation of a similar memorandum in case the evidence was dictated by the presiding officer in open Court. The object of these provisions is after all to secure as faithful and accurate a record of what each witness says in Court as it is possible to make and that object would be amply served by the preparation of a record to the dictation in open Court by the trial Judge. Hazrat Jamal and another Vs. State (1959) 11 DLR (SC) 87 : 1958 PLD (SC) 383.

 

S.357(1):—Apparently covers all cases referred to in section 356 and once a direction has been properly issued under that section it would serve to displace the provisions embodied in section 356. Where a direction under section 357 of the Code favours, for the purpose of recording evidence, in a language (English) other than that of the Court (Urdu) declared under section 558 of the Code, it is not necessary to maintain the record of evidence in the language of the Court. Under section 558, the Provincial Government may determine what shall be deemed to be the language of a Court other than the High Court. Obviously that would be the language, if the choice has been made under the section, in which the petitions to be presented to the Court have to be expressed in order to be officially acceptable and the record of evidence would also be normally required to be kept in that language, as directed by section 356. Hazrat Jamal and other Vs. State (1959) 11 DLR (SC) 84 = 1958 PLD (SQ383.

 

S.360:-—Non-compliance with the provisions of the section regarding reading over or explaining the evidence to the witness is merely an irregularity. Wazed All Vs. State (1956) 8 DLR 269.

 

—Non-compliance with the provisions of—a curable irregularity. No endorsement attached to the deposition that it-was read over and explained—no presumption under section 80 of Evidence Act. Shabitri Bala Vs. Shah Md. Ishaque ((1956) 8 DLR 154

 

—Omission to comply with the provisions of section 360 which requires that depositions of the witnesses should be read over is an illegality which is not curable by the provisions of sections 537, Cr.P.Codc. Bazlar Rahman Vs. Wasel Mollah (1955) 7 DLR 574.

 

—Affidavit alleging that the provisions of sec. 360 were violated—Record shows that they were complied with—Complaint cannot be given effect to. Salimullah Khan Vs. Crown (1954) 6 DLR 527. ^

 

S.360:—Omission by the Court to append a    certificate that the depositions of the witnesses  given in a trial were read over to and admitted to be  correct by them docs not in itself prove that the  depositions were not in fact read over. All Akbar  I Vs. Ibrahim (1951) 3 DLR 279.

 

—A mere allegation that the evidence was not I read over, without showing that the omission did I lead or might have led to some material error in the I depositions is not by itself sufficient either for I quashing a conviction or for setting aside an order, I All Akbar Vs. Ibrahim 3 DLR 279.

—Non-compliance with the provisions of sec. I 360, is an irregularity which is curable under sec, I 537, Cr.P. Code, provided there has not been a I failure of justice. I do Vs. Crown 2 PCR 91.

 

—Omission to follow the requirements of sec. f 360, is an irregularity which would not attract the  revisional powers of the High Court, unless pre- I judice has been caused. Ida Vs. Crown 2 PCR 91.

 

S .361:—Where the order of reference of the I Sessions Judge for quashing a commitment under Sep. 215, Cr. P.C., is to the effect that the accused I understands the language of the Court, but the Court does' not understand the language of the accused, it I means that the committing Magistrate did not stand  in the necessity for him to follow it only if the I accused had not understood the proceedings in the Court of the committing Magistrate. PLD (1950) (BJ) 17.

 

S.364:—Statements made under section 164 are relevant against the maker (accused) thereof when they are recorded in compliance with the provisions of sec. 364 Cr.P.C. Golam Qadir Vs. Crown (1956) 8 DLR (FC) (13)

 

—When sec. 164, Cr.P. Code, says that the confession of an accused person shall be recorded in the manner in which the examination of an accused has to be recorded under sec. 364, Cr. P.C. it means no more than that the confession should be recorded in the language in which the accused is examined and that the record of the statement should be shown or read or interpreted to the accused, signed by both theaccused and the Magistrate, and certified that it is a true record of the statement taken in the presence and hearing of the Magistrate. Wall Md. Vs. Crown (1951) 3 DLR 505.

 

—The Magistrate acting under sec. 164 has, as required by sec. 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reasons of his inability. Wall Mohd. Vs. Crown (1951) 3 DLR 505.

 

—Confessions under sec. 164, Cr.P.C., taken down in a narrative form do not render them inadmissible in evidence on the plea that they ought to have been recorded in the form of questions and answers. In fact, such questions must generally be avoided so as not to provide grounds for the objection that the confession was the result of cross-examination by the Magistrate and therefore involuntary. Wall Mohd. Vs. Crown (1951) 3 DLR 505.

 

—When the accused's statement under sec. 364 was not signed by him, the duty of the Appellate Court under sec. 533—Statement to be excluded from consideration if sec. 533 is not complied with. SaidNoor Vs. Crown (1953) 5 DLR (WP) 49.

 

—Questions put to the accused should be so framed as to give him reasonable opportunity to offer his explanation—Language in which accused may be examined. Said Noor Vs. Crown, (1953) 5 DLR (WP) 49.

 

—The Magistrate before taking down the confession of the accused also put certain question to him. One of those question was: "You are not bound to make a confession. What you will confess may be used in evidence against you, and put you to jail or hanging. 'Do you see1 and the answer was: "Yes, I shall make a confession."

 

Held: This question of the learned Magistrate clearly elicited the fact that the accused was making a confession of his own free will. State Vs. Aflabuddin (1956) 8 DLR 554.

—When it is established that the Magistrate recording the confession of the accused took due care to ascertain that the confession made was voluntary, the fact that Magistrate did not fill in col. 8 of the prescribed form does not render the confession inadmissible. In the circumstances, failure to fill up certain column of the prescribed form would not affect the admissibility of the confessional statement. Salauddin Vs. Stale (1980) 32 DLR 227.

 

—Confession retracted-—Retraction, whether judicial or extra-judicial, is immaterial if once it is found voluntary and true and as against the maker can form the basis of conviction. Salauddin Vs. State (1980) 32 DLR 227.

 

—Two days' time to the State— appointment of Council at his request for preparation is not insufficient and can not be said to have led to injustice to the defence. In the instant case the learned Advocate appointed to defend the prisoner himself prayed for one day's lime and the Court allowed the same. He was appointed on 24.7.78 and the trial commenced on 26.7.78. There is, therefore, nothing to show that sufficient time and opportunity was not given to the Advocate concerned to prepare the defence. Salauddin Vs. State (1980) 32 DLR 227.

 

—A confession recorded by a Magistrate in compliance with the provisions of sections 164 & 364 Cr.P. Code shall be presumed that all the ingredients of s. 80 Evidence Act .fulfilled. Emran Ali Vs. State,; (1985) 37 DLR 1.

 

8.364(3):—Failure to keep memorandum of accused's statement—Irregularity curable under section 533. HazratJamal Vs. State (1959) 11 DLR (SC) 84 = (1958) PLD (SC) 383.

 

S.366:—A Judgement not actually delivered, that is, pronounced in Court (though it was signed) is not a valid Judgment. Amin Sarif Vs. Syeda Khaton and others (1962) 14 DLR (SC) 75: (1962) PLD (SC) 97.

 

Ss.366-367:—In trials held with the aid of assessors—Passing of orders of convictions and sentences at first and writing the judgment at' a later date violate the procedure and such violation not curable by section 537. The trial was held with the aid of assessors. At the close of arguments by the lawyers the Sessions Judge addressed the assessors in whose unanimous opinions the two accused appellants were guilty under section 304, Part II P.P. Code. The Sessions Judge recorded their opinions, convicted and sentenced the two accuseds under section 304 part II of the Penal Code.

 

Some 4 days after a judgment was written and signed by the Sessions Judge in support of the convictions and sentence recorded 4 days earlier, but instead of conforming their conviction and sentences under section 304 part II, the Sessions Judge in his judgment observed that they are convicted under section 304 Part II read with section 34 of the Code.

 

Held: In view of what has taken place it may well be argued that the decision to convict was that of the assessors, and not of the Judge who made an attempt subsequently to support that decision by writing out of a judgment which failed strictly to conform to that decision.

 

Pronouncing judgments in the mode prescribed by the Code necessitates a careful and systematic consideration of the materials' appearing in the evidence and the points raised in the arguments advanced by the parties and the pressure of these considerations on the mind of the Judge ensures a correct decision on merits. By a judgment subsequently written, the Judge would be more likely to be led by the consideration that the "sentence earlier passed was any how to be supported. He will be powerless to alter or modify the same, however honestly he may think that the sentence already passed was wrong. Besides, if a sentence were allowed to be passed in the absence of a judgment that would result in placing obstacles in the way of exercise of the right of the party feeling -aggrieved by the sentence to seek remedy in a higher Court. Ahdus Saltar Howlader Vs. Slate (1963) 15 DLR 30: ILR 14 All 242 rel.AlR (1942) Lah. 100; ILR Cal 502 ILR 45 Mad. 913 Diss).

 

S.367:Signing of the judgment to be a lawful judgment must be in open Court and not at home. Amin Sharif Vs. Syeda Khatoon and State (1962) 14 DLR (SC) 76 = (1962) PLD (SC) 97.

 

—Contents of judgment in appeal-Requirements of section 367 applicable—Selling down the conclusions without reasoning in support of them not a proper way of disposing of the appeal. Sana Mia Vs. Slate (1958) 10 DLR 372.

 

—Of judgments.—Judgments—-Compliance with any prescribed form, if indispensable-Judgments, if show appreciation of the points for decision their consideration as well as reasons for findings, are proper judgments—Failure to follow prescribed form curable under sec. 537. Montazuddln IVs. A. Rahman (1957) 9 DLR 122.

 

—The section requires that a judgment must contain the points for determination, the decision thereon and the reasons for the decision. The object of these provisions is that a criminal Court should consider the case before it in all its bearings and should, on such consideration, arrive at definite conclusion after considering the evidence in the case. Gul Md. Vs. Crown 2 PCR 171.

 

—Where the judgment .of the Appellate Court has not touched the evidence and has not taken into consideration the grounds of appeal and the judgment in no manner be a judgment which would help the Court in revision.

 

Held: Judgment of this type frustrates the object of appeal. Gul Md. Vs. Crown, 2 PCR 171.

 

—Where the Magistrate has not committed to paper what consideration of the evidence has led him to the conclusion arrived at by him, in the absence of any such discussion of the evidence, it is impossible to uphold his order. Malik Nikar Vs. Munshi Kaikobad (1955) 7 DLR 81.

 

-Failure to discuss discrepancies in evidence by ihe High Court calls for interference by the Supreme Court. Munwar Ahmed Vs. The Stale (1956) 8 DLR (SC) 157.

 

—Judgment after remand and retrial of case-Must be complete and self-contained. When the Magistrate was disposing of the case afresh according to law, he should have written a complete and self contained order covering not only the evidence led on the side of the defence in the re­trial but also the prosecution case and the evidence of the witnesses adduced in order to prove the prosecution case and a discussion of the salient points arising from their evidence. Mojibul Haider Vs. 11.11. Shingh Chowdhury. (1951) 3 DLR 463.

 

—Judgment-contents—should set but the ingredients of the offence seriatim (1955) 7 DLR

tSind)230.

 

—Judgment in appeal, contents of—Not in accordance with law—case remanded for determination afresh of appeal. 4 PLD (BJ) 34.

 

—High Court's-judgment, dismissing an appeal, without examination of facts or legal issues, and simply agreeing with the judgment of trial Court without considering the judgment of the Appellate Court which was in favour of the accused—High Court should have expressed its reasons for disagrcing with the views expressed by the Sessions Judge although Sessions Judge's judgment was without jurisdiction. Askar Alt Vs. Stale (1959) 11 DLR(SC). 2261(1959) IX PLR (SC). im;(1959) PLD(SC) 251.

 

—Contents of. judgment in appeal-Requirements of section 367 applicable—Setting down the conclusions without reasonings in support of them not a proper way of disposing of the appeal. Sana Mia Vs. Slate (1958) 10 DLR 672.

 

—Manner of discussion of evidence in the judgment. The proper course, in a criminal case, when witnesses are examined on behalf of both the parties, to follow, is to take into consideration the evidence of both the parties side by side and then to come to a finding whether the prosecution has succeeded in proving its case beyond any reasonable-doubt, or in other words, the defence has cither succeeded in showing that the prosecution version is untrue or that there is reasonable doubt as to the prosecution case. Discussion of evidence of both the sides in a disjointed manner cannot be approved of. Abdus Sattar Mollah Vs. Slate (1962) 14 DLR 59.

 

—Judgment—Duty of the Court regarding assessment of evidence. The trial Magistrate disposed of the case with the following observation :- " I have carefully gone through the document of both the parlies and have also considered the merits and demerits of the oral evidence of both the parties. Many things can be said for and against the documentary as well as oral evidence of both the parties. The case appears to be too complicated to arrive at a definite conclusion in respect of actual possession in a proceeding under section 145 Cr.P.C. From the evidence on record I am unable to satisfy myself as to which of the two parties was in actual possession at the time of institution of the proceeding."

 

Held : Where it appears that the Magistrate has kept himself on the surface all the time and has used the literal language of section 146 of the Code and there is no attempt for discussion except the general reference to the evidence in the case.

 

The mere fact that vast properties and great volume of evidence arc involved in the case dews not exonerate a Magistrate from himself trying to assess and examine the evidence to the best of his abilities in the fact and circumstances of the case. Ilazi IfaidarAH Malbar Vs. Ilazi Md. Sekandar (1961) 13 DLR 119: 1961 PLD (Dae) 836 (24 Cr.LJ. 616 fol.)

 

—Therefore, in such case the Magistrate has got to give his decision in a properly 'written judgment, though in brief, as contemplated under section 367. The learned Magistrate when acquitting the accused is required to state the offence of which the accused is acquitted and direct that he be set at liberty. Mubarak All Gazi Vs. Mukbul Sarder, (1971) 23 DLR 96.

 

—If a confession is recorded without the observance of the formalities of section 164, it need not be ruled out completely. There is a curative provision of sec. 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sees. 164 and 364 of the Code has not injured the accused in his defence on merits. Golam Abbas Vs. State, (1968) 20 DLR (WP) 48.

 

—Order (judgment) dismissing an appeal summarily under section 367 must show that the court dismissing it as such applied its judicial mind to the question of fact and jaw though it need not write a full judgment as required under section 421. Abdur Rashid Munshi Vs. The Slate, (1976) 19 DLR (SC) 486.

 

—In a warrant case when trie witnesses are examined by the prosecution and a charge is framed against the accused persons, the Magistrate can pass no order except that of the order of conviction or acquittal. Mobarak All Gazi Vs. Mukbul Sardar, (1971) 23.DLR 96.

—Particulars detailed in the section to be complied with when "writing a Judgement. Perfunctory way of disposing a case without following the provision of s. 367 is condemned. Bangladesh Vs. Sakim Halsana (1987) 39 DLR 187.

 

8.367(1) :—'Shall be dated and signed in open court at the time of pronouncing the judgment'—provision infringed, Judgment vitiated—Conviction set aside. Section 367 sub-section (1) of the Code requires that the judgment of a criminal court shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it. In the present case the Judgement was delivered on 14.11.66, but it appears to have been signed-by the Magistrate on 29.10.66. There would have been no infringement of law had the judgment been written on 29.10.66 but not signed by the Magistrate on that date and had been signed on 14.11.66, the actual date of pronouncement of the judgment In this case the judgment was not signed and dated by the learned Magistrate in open court on the date of its delivery. The judgment is vitiated by this illegality and it is liable to be set aside together with order of conviction and sentence. M.K. Jaman Vs. Maliar Rahman, (1968) 20 DLR 434.

 

8.367(2):—Omission to specify the sections under which a conviction is based does not always amount to illegality. Khalrudin Vs. State (1957) 9 DLR(WP) 39.

 

8.367(3):—An alternative conviction under sec.367, clause (3), of the Code of Criminal Procedure based upon an inadequate consideration,of the provision of one of the alternative sections and the material evidence relating thereto is bad in law. State Vs. Gulam Mostafa (1949) 1 DLR 71.

 

8.367(5):   Sentence,    in   a   case   of murder—If a lesser sentence than that of capital punishment is intended reasons therefor will have to, be recorded. The reason will depend on the facts of each case. Some extenuating or mitigating circumstances might be the reasons for imposing a lesser sentence of transportation for life. State Vs. Md. Akhtar, (1973) 25 DLR 444.

 

—Guidance in fixing the measure of punishment. In fixing the measure of punishment, one is to be guided not by section 367 of the Cr.P.Code, but by various other matters; for instance, enormity or otherwise of the offence, and the particular circumstances under which the accused committed it. They all go back to the facts of the case. But in the case of death penalty the Courts have gone so far as to consider matters which are not relevant to the crime, e.g. mere delay in passing judgment, a circumstance bringing into play humanitarian grounds.

 

The fact that the accused did commit the murder the influence of some provocation-is one to which great weight ought to be attached in considering the question of sentence. Crown Vs. Seraj All (1955) 7 DLR 119.

 

—The two cases were over different plots of land and were instituted by different complainants, and, although the Magistrate tried pari passu both the cases, he should have written a self-contained judgment for each case and he certainly was in error when he treated the evidence and documents in the case instituted by one complainant as evidence in the case instituted by another complainant. Kasimuddin Ahmed Vs. Crown (1954) 6 DLR 339.

 

—Strictures and damaging remarks against a person—neither a party nor a witness, cannot be made in the judgment unless the person against whom such remarks or strictures are passed is called to the Court and given opportunity to explain. Even in that case, such remarks should be avoided unless they are strictly essential in the interest of justice. PLD1950 (Lah) 58.

 

Ss.368-369:—Sentence   of   death. The Sessions Judge passed a sentence, of death under section 302, P. P. Code, but omitted to mention in the judgment the mode of execution, as required by section 368, Cr.P.C. The death sentence .was confirmed by the High Court under section 374, Cr. P.C. The Crown applied to the High Court to correct this clerical mistake—Omission of mode of execution under section 369.

 

Held: It was the function of the Sessions Judge to' point out the mode of execution and not of the High Court. PLD 1950 (Rah) 52.

 

S.369:—Clerical     errors     can     be corrected. Clerical errors can be corrected by High Court under inherent powers. Crown Vs. Ilabibullah (1953) 5 DLR (WP) 71.

 

—Section 369 enacts that, save as otherwise provided by that Code, a judgment of a Court in a criminal matter could not be altered or reviewed by that Court except to correct a clerical error. 8 PLD

 

Court cannot alter its judgment once it is delivered. After the judgment had been delivered by the Court in the absence of the Counsel appearing on behalf of the appellant due to his serious illness on the day when the case was called for hearing and disposed off, the Learned Counsel filed an application for rehearing of the appeal.

 

Held : Under section 369 of the Code of Criminal Procedure a finality has been attached to judgments already delivered and it has been clearly laid down that no Court which has signed its Judgment shall alter or review the same except to correct a clerical error, Md. Adiluddin Vs. Md. Adiluddin Sheikh (1981) 33 DLR 88.

 

—Delay in disposing of a Death Reference ii/s. 374 Cr.P.C. never by itself a good ground for commuting death sentence.

 

S. 374 Delay of 7 months in disposing of the Reference can not be held to be an extremely

excessive delay. Salauddin Vs. State (1980) 32 DLR 227.

 

S.375:—There is no rule where an accused; person may himself recall a witness and examine him in appeal and then claim as of right an opportunity to rebut his evidence. If any such claim were to be recognised, as founded on any rule of law or principle of natural justice, once an accused person succeeded in having a witness re-called, he could prolong indefinitely the proceedings by calling witnesses ad infinitum, each to rebut the other. Fazal Elahi Vs. Crown (1949) 1 DLR (WP) 13 (24).

 

—An accused person is not as of right entitled to rebut all evidence that may be taken by the Appellate Court in exercise of its powers under sections 428, 375 and 540 of the Code. Fazal Elahi Vs. Crown, (1953) 5 DLR (WP) 13 (24).

 

—If evidence is taken by an Appellate Court as to new relevant fact and the proof of that fact enhances the incriminating evidence against an accused person, it is only fair that he should have a right to rebut the evidence so taken. In such circumstances, he has as clear a right to rebut the additional evidence. But where a prosecution witness is recalled by the Appellate Court only to have a point in his evidence clarified neither the accused nor the prosecution can as of right claim rebuttal. Fatal Elahi Vs. Crown, (1953) 5 DLR (WP) 13 (24),

 

—So far as the right to contradict is concerned, the governing principle is that if the evidence taken by the Appellate Court relates to a new relevant fact, which was not before the trial Court, both parties, namely, the prosecution and the accused, are entitled to lead evidence on that point. But if the evidence does not relate, to use an easily understandable but somewhat uncommon expression, to a substantively relevant fact and merely affects credibility of a witness, the position is different and is governed by entirely different rules. Fazal Elahi Vs. Crown (1953) 5 DLR (WPC) 13 (26).

 

—There is a fundamental distinction between filling up gaps in the prosecution evidence and removing discrepancies in such evidence. The former implies that evidcnqc lacking as to a fact which was a necessary constituent of the offence charged and the Appellate Court filled up the gap by taking additional evidence whereas the latter means that the Appellate Court resolved an apparent conflict in the evidence not in the interests of justice but merely to be able to maintain the conviction. Fazal Elahi Vs. Crown (1953) 5 DLR (WPC) 13 (21).

 

—Further inquiry of additional evidence at appellate stage should not be ordered to cure infirmities in prosecution case—Denial of accused's right to rebut such evidence amounts to a violation of the principles of natural justice. AH Vs. Crown (1952) 4 DLR (FC) 11.

 

—Directing further enquiring or taking additional evidence. Identity of accused in dispute—prosecution given two opportunities by Sessions Judge to establish identify—Chief Court ordering recording of further evidence—power not exercised judicially. Khan Vs. Crown (1955) 7 DLR (FC)I.

 

—Provisions of sections 375 and 428 of the Cr.P.C. are meant to be used in such a manner as to secure even-handed justice to both parties, and that they should not be utilized to cure all the infirmities in the prosecution case in the Appellate Court.

 

It does not make the slightest difference whether the additional evidence is required by the Court or produced by the parties. Khan Vs. Crown (1955) 7 DLR (FC) I.

 

—Despite the wide terms of section 375 the powers given to the Appellate Court are only meant to be exercised; where the additional evidence was cither not available at the trial or the party concerned was prevented from producing it either by circumstances beyond its control or by reason of misunderstanding or mistake. Khan Vs. Crown (1955) 7 DLR (FC) I

 

—Further inquiry or additional evidence at appellate stage should not be ordered to cure infirmities in prosecution case. Denial of accused's right to rebut such evidence amounts to a violation of the principles of natural justice. All Vs. Crown (1952)4 DLR (FC) 551 (559).

 

—The proceedings envisaged in section 231 are in the nature of a limited enquiry relevant to the new matter appearing in the added or altered charges, and such a limited enquiry may also have been conducted or directed under the powers derived from section 375. Therefore, while we consider that the demand for a re-trial, in the sense of a completely new trial was excessive, it appears to us that there was a case for allowing a limited enquiry as indicated above and such an enquiry would have been practically conducive to the dispensation of justice in the case. Fazal Elahi Vs. Crown (1953) 5 DLR (PC) 44 (62).

 

—Conviction altered in appeal—From sections 302/149 to sections 302/34 so far as two of the members of an unlawful assembly were concerned, and to sections 325/149 with regard to the rest. If former alteration could be formulated only on record of additional evidence, allowing a fresh limited enquiry or re-trial advisable. Fazal Elahi Vs. Crown (1953) 5 DLR (WPC) 44 (62).

 

—The defence asked for an opportunity to rebut the evidence of some prosecution witnesses who had been recalled and examined by the High Court at the  Ss. 376-4U1 appellate stage to elucidate certain points, but the prayer was refused.

Held: The High Court did not exercise its discretion properly in refusing to grant an opportunity to the defence to rebut the evidence of the prosecution witnesses and this constituted a violation of the principles of natural justice and seriously prejudiced the case of the accused. All Vs. Crown (1952) 4 DLR (FC) 111 (119).

 

S.376:—Death Reference case can not be disposed of unless the connected appeal by the accused is disposed of. (Shahabuddin Ahmed, J.) : Section 376 Criminal P.C: provides that no Death Reference shall be disposed of unless the condemned prisoner's appeal, if filed, has been disposed of. Moazzem llossain Vs. State (1983) 35 DLR(AD) 270.

 

—Death sentence submitted to High Court under the section for confirmation—High Court passes a sentence of transportation for life. Appeal may lie against such a sentence under Article 58. Md.Rafique Vs. State (1963) 11 DLR (SC) 219.

 

S.378:—Questions may be referred to the Full Bench. Neither section 378 nor section 429 prevents the obtaining of the decision of a Full Bench upon a question of law or the subsequent delivery of the opinion of the third Judge upon the whole case. The third Judge before whom a case is under section 378 exercises the authority of a Bench of Judges and, therefore, he should be considered not as ! a single judge, but as a Bench. The case is not one which is dealt with in fact by single Judge, but one which is dealt with by three Judges, even though the third Judge is dealing with it at a later stage than the two disagreeing Judges. Muhd. Shaft Vs. Crown (1954)6DLR(WP)SindW4. —District Magistrate himself not competent to issue distress warrant for realisation of fine. Ilazi Moliur Rahman Chowdhury Vs. State (1961) 13 DLR 731:1962 PLD (Dae) 238.

 

S.386(I)(a):—Penalty under the Sea Customs Act—revenue matter. Though a Magistrate enforces payment of penalty of unpaid amount of duty from a defaulter under the procedure of section 386(1) (a) on the notification of the Customs Officer under section 193 of the Sea Customs Act, the proceeding is entirely a revenue matter and does not relate to fine within the purview of the Code of Criminal Procedure. Jamal Ahmed Vs. Collector of Customs (1954) 6 DLR 217.

1863

Constitution of Pakistan, 1962 -22

Citation: (1956) 8 DLR 250, 7950 PLD (Lah.) 497, (1963) 15 DLR 175, (1951) 3 DLR (FC) 308, (1968) 20 DLR (WP) 25, (1968) 20 DLR 1005, (1955) 7 DLR (WPC) 91, (1961) 13 DLR 892, (1962) 14 DLR (SC) 235: = (1962) PLD (SC) 397, (1962) 14 DLR 263, (1962) 14 DLR (SC) 96

Subject: Constitution of Pakistan

Delivery Date: 2018-09-12

S.397:—Sentence on an offender already under sentence for another offence.

Section 397 lays down the principle that a sentence commences to run from the time of its being passed, and this section created an exception in the case of persons already undergoing imprisonment and postpones the operation of subsequent sentence until after the expiry of the previous sentence unless the Court Directs that a subsequent sentence shall run concurrently with such previous sentence. The general rule is that the operation of the subsequent sentence would be postponed until after the expiry of the previous sentence. Muzharul llaque Vs. Crown (1956) 8 DLR 250.

 

—A person is "undergoing" imprisonment within the meaning of section 397 from the moment the sentence is passed and that the accused was undergoing his first sentence when the second and third were pronounced on him and, consequently, where there is no order making them concurrent, they will be undergone consecutively. 7950 PLD (Lah.) 497.

 

S.401 ; Cornelius C. J. (Akbar & Hamoodur Rahman, J. J. agreeing) Provincial Government's powers of remission of a sentence remain unaffected by sec. 5 of the President's Order 26 of 1962. When a direction is given by the President reducing a sentence of imprisonment, the direction not being one which would fall under Article 18 of the Constitution, the Provincial Government reducing the sentence in exercise of powers vested in it under section 401, Cr.P.Codc, in compliance with the President's direction the sentence thus reduced is just the sentence reduced by the Provincial Government under section 401, the President's Order has no separate existence—Subsequent order of the Provincial Government cancelling the previous order passed under section 401 is without effect in as much as effect of the first order had already been given. Lt. Col. G. L. Bhattacharjee Vs. State (1963) 16 DLR (SC) 442

 

—Mistake—Mistaken view of law as a ground for negativing the order of remission of sentence already granted by the same authority not available in law. Lt. Col. G.L. Bhattacharjee Vs. State (1963) 15 DLR 175.

 

—Government cancelling or withdrawing its own order of remission of sentence from taking effect is limited to cases where a decisive step remains yet to be taken and not to case where a decisive step has already been taken. Lt. Col. G. L. Bhattacharjee Vs. Slate (1963) 15 DLR 175.

 

—Order passed may be recalled if not acted upon. An order passed by the Provincial Government under sec. 401 is subject to modification or recall provided that the previous order has not yet been acted upon. If, however, the previous order has been given effect to, so that no locus poenilentiae is left, there will be no occasion for the exercise of the power mentioned in section 21 of the General Clauses Act. Shahbaz Vs. Crown (1955) 7DLR(WPC)9L.

 

—Whenever an application is made to the Provincial Government for the suspension or remission of the sentence the Provincial Government may require the presiding Judge of the Court by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused. It is not obligatory on the Provincial Government to consult the High Court in this respect. Md. Sarwar Vs. Crown (1951) 3 DLR (FC) 308.

 

—Life sentence means 20 years of imprisonment—Remission earned on the basis of rules framed under section 59 of the Prisons Act reducing 20 years to 14 years and after 14 years completion the matter to be referred to the Provincial Government for appropriate action. Convict can not claim 14 years as a matter of right. Muhammad llossain Vs. The State, (1968) 20 DLR (WP) 25.

 

—Detention order, when not be made. It may be safely taken that in making the previous order of detention as early as 29-6-66, some former materials were taken into consideration'by the detaining authority. So in fairness those activities for which this detcnue had already suffered detention cannot be taken as affording reasonable basis for further detention. When a specific case has been started in relation to the alleged activity of the dctenue on a certain date, the same activity should not in fairness be taken as a reasonable basis for making an order of detention. Shahidul Hague Vs. Government of East Pakistan, (1968) 20 DLR 1005.

 

8.401(3)—Sub-section (3).of section 401 of the Code docs not necessarily imply that the General Clauses Ac,t arc pro tanto negatived. Such an inference should not be drawn unless it is inevitable and the language of the two statutes is absolutely irreconcilable. Shahbaz Vs. Crown (1955) 7 DLR (WPC) 91.

S.403 : Continuing offence, when does not constitute more offence than one. The expression, "when an offence is a continuing one" docs not convey the idea of a fresh offence which is committed daily. This phrase simply means when.the same offence is continued.Where a continuing offence is sought to be punished more than once, the continuance itself is made an offence by the statutes themselves. In the present case the accused who was foreigner was once convicted for staying in the country without a permit. On his release from imprisonment he did not leave Pakistan but continued to stay for which he was again put on trial and convicted and sentenced to imprisonment. Amir Khan Vs. State (1961) 13 DLR 892.

 

—Refusal to take cognizance of an offence under section 182 P.P.C., for absence of complaint by public servant concerned does not amount to acquittal. An acquittal would mean acquittal on facts which creates a bar for further trial under section 403. What the Additional Sessions Judge said in respect of section 182 P.P.C. is only this that in the absence of a complaint he was not prepared to take cognizance. The refusal to take cognizance is no bar for further trial and does not operate as an acquittal of a charge. It is open to the public servants concerned to file complaints on which proceedings can be taken denovo. Rana Muhammad Fazal Khan Vs. Slate (1962) 14 DLR (SC) 235: = (1962) PLD (SC) 397.

 

—Autrefois     acquit     or     autrefois

convict. On the principle of double jeopardy as laid down in this section, a second trial cannot be allowed to be proceeded with when the ingredients of the two offences are same. Md. Mahsenuddin Ahmed Vs. State (1962) 14 DLR 263. .

 

—Effect of a discharge order—A man should not be twice vexed on the plea that the earlier order was a discharge order. It cannot be said that an order of discharge has no effect on the competence of further proceedings. The general principle that there has to be an end to litigation is applicable ex necessile re to proceedings of any kind in a Court. The argument that section 403 docs not.crcate a bar cannot be conclusive in the face of the well-established principle that there is to be an end to litigation and that as a general rule a person is not to be vexed twice in respect of the same matter. AbulIIossain Sana Vs. Suwalal Agarawala & State (1962) 14 DLR (SC) 96: (1962) PLD (SC) 242.

 

—In the case of an order of discharge the accused can again be put orr his trial on the same facts. AbdulJabbar Khan Vs. State (1960) 12 DLR 823: (1961) PLD (Dae.) 440.

 

—Acquitted in the first trial on a charge under section 409 P.P.C. on the finding that signatures in' question were made in good faith. Second trial • started under section 477-A P.P.C. for falsification of accounts not maintainable as the same question was in issue-as in the second trial.

 

Held : In earlier trial the finding was to the effect that the same signatures were made in good faith and therefore in the present case there can be no conviction for falsification of accounts. And hence continuance of the present proceedings will put the petitioner into unnecessary harassment. If he were so tried, it would in effect amount to trying him again for the same offences on those upon which he had been tried and acquitted. Abdul Majid Vs. State (1962) 14 DLR 550 (AIR 49 Cal. 924 AIR 1915 Pal. 384, AIR 1937 All 117 rel).

 

—Rule as regards second trial for the same offence or for another offence for the same facts. The only statutory provisions which recognise the rule against double jeopardy are, provided in section 26 of the General Clauses Act, 1897. The former bars a second trial, the latter prohibits a person from being punished twice for the same offence. M.S.K. Ibrat Vs. Commander in Chief (1956) 8 DLR (SC) 128.

 

—It is certainly not the intention of the Legislature to allow, for the prosecution of accused persons under one section of the Pakistan Penal Code and; if the prosecution fails, to allow a subsequent trial to take place for another alleged offence on the same set of facts. When the knowledge of the alleged offence comes to the notice of the Police authorities, they were at perfect liberty to challan me accused at the first trial by a joinder of charges, if necessary. Md. Jan Vs. Crown j( 1953) 5 DLR (WPC) 114.

 

—The whole basis of scc.403 is that the first trial should have been before a Court competent to hear and determine the case and lo record a verdict of conviction or acquittal. If the Court was not so competent it is irrelevant that it would have .been competent to try other cases of the same class. YousufAli Mollah Vs. Crown (1950) 2 DLR 151.

 

—When an accused is acquitted of the offence of theft under section 379, P.P.C., he cannot be/tried again for dacoity on the same facts. Misir All Vs. A Mamith (1956) 8 DLR 634.

—Accused challaned under sec. 302, 364, Indian Penal Code. But in tKe final Police report under sec. 173, Cr.P.C., investigating officer recommended "discharge" of the accused—Accused accordingly "discharged" by the magistrate— Subsequently complaint filed against accused under sec. 302/109, Indian Penal Code, and warrants issued—Proceedings in complaint held, not barred by sec. 403, Cr.P.C. / PLD (Lah.) 537.

 

—Accused acquitted of an offence charged under section 408, P.P. Code—He can be prosecuted for dissobeying a Martial Law Order. Section 403 goes to show that where a person is not being tried again for the same offence, he cannot be heard to say that because he had been acquitted previously and that acquittal is still in force, he is not liable to be tried again for the same offence, or on the same facts for any other offence for which a charge against him might have been made under section 236, Criminal Procedure Code or for which he might have been convicted under section 237 of the Code. Ghulam Nabi Vs. State (1966) 18 DLR (WP) 82.

 

—Contravention of quit notices by a foreigner—Successive prosecutions no bar—Each contravention constitutes fresh offence. Every contravention of every notice to quit constitutes a fresh offence. If this be not so, the result would be disastrous for the reason that a foreigner once convicted or acquitted for contravening a quit notice would become immune from further prosecution and this would enable him to go on residing in this country illegally and with impunity. Section 403 of the Code docs not conceive of such a situation. E. P. Vs. Jilani Khan, (1968) 20 DLR 423.

 

—Principle of double jeopardy is applicable only to cases in which an accused is tried second time for the same offence for which he has already been tried—The principle has no application in cases of Police investigation for second time. Muhammad Hayat Vs. The Chief Settlement Commissioner, (1971) 23 DLR (Lah) 34.

 

—"Continuing offence" — Accused convicted in the first trial under sections 115 and 116 of the Municipal Administration Ordinance— He was convicted in a 2nd trial under the same sections and sentenced to pay Rs. 20/- per diem till he stopped running the Mill—Punishment thus envisaged permissible. Amanullah Molla Vs. Dacca Municipality, (1967) 19 DLR 684.

 

—To invoke the principles of aulrefois acquit as laid down under section 403 of the Code and in order that the said principles may apply, the essential ingredient is that the same issue which arises in the present trial was raised and decided in the former trial. Slate Vs. Gopinath Chose (1977) 29 DLR 366.

—Whether having been prosecuted once on a certain set of facts a man can be prosecuted again depends entirely on whether at the earlier trial, he was in jeopardy of being convicted of the offence for which he is tried or sought to be tried at the later trial. If he was not, the subsequent.trial may proceed. Stale Vs. Gopinath Chose (1977) 29 DLR 366.

 

—Dismissal of a complaint or discharge of an accused is not the same thing as acquittal.

There cannot be a fresh prosecution after acquittal of the accused. Ahdus Salam Master Vs. The Slate (1984) 36 DLR (AD) 58.

 

—Principles .of res judicata or estoppel not applicable in criminal cases. There is nothing like res judicata in a criminal trial as long as it docs not terminate in cither acquittal or conviction so as to attract the provisions of s.403, Criminal P.C. and there is nothing to estop an accused person from showing that the act with which he is charged as penal did not constitute an offence. Akram Ilossain Mondal Vs. Bangladesh (1979) 31 DLR 127.

 

8.403(1)—Under scc.403(I), when a person has been once tried by a Court of competent jurisdiction for an offence, and has been convicted or acquitted of such offence, he cannot, so long as such conviction or acquittal remains in force, be tried again for the same offence nor on the same (acts for any of the offences for which a different charge might have been made against him under sec. 236, or for which he might have been convicted under sec. 237 of the Code. Masirali Vs. A. Mamith (1956) 8 DLR 634.

 

—Upon sanction -granted for prosecution covering the period from 1943 to 1947, the first tirial was limited to a charge of misappropriation, etc., during 1945,—Second trial for misappropriation, etc., in respect of a certain sum of money in 1947 -2nd trial not barred under sec. 403(1) Mozharul lioq Vs. Crown (1956) 8 DLR 250.

 

—The whole basis of sec. 403(1), is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. A Court cannot be. competent to hear and determine a prosecution, the constitution of which, in the absence of a proper sanction, is prohibited by law. Md. Imran Ilossain Vs. Crown (1950) 2 DLR 82 A.

 

—A person can not be tried twice for the same offence. Abdul Jabbar Vs. Govt. of Bangladesh. (1981) 33 DLR 230.

 

—On the question of possession of gold by the accused he was given benefit of doubt in a trial held under Act 1 of 1956. His subsequent trial u/s. 167(81) of the Sea Customs Act for recovery of gold from his possession is barred u/s 403(1) Cr.P.Codc. Gopinaih Chose Vs. Slate (1980) 32 DLR (AD) 177.

 

—Unless the merits of case arc gone into, the accused cannot be said to have been acquitted on the facts.

Acquittal in order that previous trial in respect of an offence shall operate as a bar it must be before a Court competent to hear and determine case. Where the prosecution requires previous sanction, acquittal in such trial is no bar under section 403 (I), Cr.PsCodc in the absence of such sanction—Mere fact that no appeal had been preferred against order of acquittal is no ground for not holding such order as nullity. State Vs. Md. Shaft (1964) 16 DLR (WP) 30.

 

—The accused were tried under sec. 5(2) of Act II of 1947 and convicted by an Assistant Sessions Judge silting with a jury. On appeal, the Sessions Judge set aside the order of conviction and sentence for want of a valid sanction under the aforesaid charge and directed a retrial after obtaining fresh sanction for the purpose. Fresh sanction was' accorded. On an application for quashing of the proseedings:

 

Held: The order of the Sessions Judge for retrial cannot be legally supported. Held further : That if the authorities so desire, fresh prosecution may be instituted for the same offence, and section 403(1) would be no bar to that. Ilurmal All Vs. Crown (1952) 4 DLR 305.

 

8.403(3)—Subsequent trial on the same set of facts not illegal when the offence committed comes within the ambit of a different law. The accused were put on their trial to answer charges under section 19(e) of the Arms Act. Previous to this trial there were two other trial under two different provisions of the Penal Code against the same accused on thQ. allegation of same set of fact and in both the trials they had been acquitted, It had been found that though the same allegations were made in the previous two trials, but the acquittal of the accused look place on different grounds. It was contended that the ihird trial of the accused on a charge under Ihc Arms Act was in breach of ihc principle of the provisions as embodied in scclion 403(3) of the Code or the principle of resjudicata as laid down by ihc Privy Council in Sambasivam case (54 C.W.N. 695 P.O.).

 

Held : Regard being had to facts in this particular case it cannot be said lhal the present trial was barred under scclion 403 Cr.P.C. or on the principle of res judicata as enunciated by Ihc Privy Council in the last mentioned case. The principle of res judicala docs and should apply to criminal proceedings in ihc same way as lo civil proceedings inasmuch as a person cannot be called upon lo conlcsl the same qucslion over and over again. But in order that the said principle may apply, the necessary ingrcdicnls must be present one of which is that the same issue which arises in Ihc trial in question was raised and decided in the. former trial. Matiur Rahman Vs. State (1962) 14 DLR 526: (1962) PLD (Dae.) 238.

 

—Sub-section (4) applicable when the Court which tried and acquitted ihe accused of a minor offence was not competent to iry him on the same facls consliluling major offence. In such a trial, the acquillal in the minor offence remains in force and can be pleaded in defence of his not being guilty to render the trial for the major offence infructuous. Masirali Vs. A. Mamith (1956) 8 DLR 634.

 

S.404 : Appeal—Appeal docs not lie as a matter of course, being merely a creature of law. Hari Meah Vs. State (1958) 10 DLR 123.

 

—Appeal—Criminal Court includes a Court of Special Judge. Section 404 lays down that no appeal shall lie from any judgment or order of a "Criminal Court" except as provided by that Code or by any other law for the time being in force. The expression "Criminal Court" would include a Court of Special Judge under the Pakistan Criminal Law Amendment Act. S. M. K. Alvi Vs. Crown (1953) 5 DLR (FC) 161(173).

 

S. 407(2) : After the amendment of S. 407 by Ordinance XXIV of 1982 appellate power as against orders of conviction passed by Magistrates has been given to the Additional District Magistrates who arc made subordinate to the District Magistrates. Jamsed All Vs. Abdus Samad. (1983) 35 DLR 148.

 

—Summary order of rejection of an appeal made u/s. 407/(2) by the Addl. Disl. Magistrate— Such disposal of the appeal without considering it on its merits can not be sustained in law. Jamsed All Vs. Abdus Samad. (1983) 35 DLR 148.

 

—Disposal of cases with utmost expedition as provided by the amendment does not mean perfunctory disposal without assigning any reason whatever and at the cost of dispensation ofjustice. Jamsed All Vs. Abdus Samad. (1983) 35 DLR 148.

 

—Addl Dist Magistrate avoided responsibility caused thereby a serious miscarriage of justice-Courts concerned are reminded as to their responsibility in the disposal of such appeal. Jamsed Ali Vs. Abdus Samad. (1983) 35 DLR 148.

 

S.408 : Trial by a Special Magistrate, in respect of an offence falling under ordinary law. Where a Magistrate acts not as a Special Magistrate but as an ordinary Magistrate, an appeal in the usual course will lie against his decision.

 

When the goods in respect of which a trial has been held are not goods falling within the notified order under the East Pakistan Control of Essential Commodities Ordinance, 1956, the mere fact that the Magistrate who tried the Offence was a Special Magistrate and whose decision as a Special Magistrate is non-appealable will not render his decision as a decision of a Special Magistrate and therefore, an appeal against his decision will lie in usual course. Monoranjan Dey Vs. State (1959) 11 DLR 172 :1959 PLD (Dae.) 616.

 

—Proviso(b) Appeal against a first class Magistrate's order imposing sentences for offences under items (8) and (81) of section 167 of the Sea Custom Act, would lie to the Session Judge, since proviso (b) to section 408 is not attracted in a case where Magistrate is empowered to act under section 193-B. Sea Customs Act.

 

If an appeal from a sentence for a terra exceeding four years passed by a Magistrate of the first class specially empowered under section 193-B of thc^-Sea Customs Act is competent under section 408 of the Code of Criminal Procedure, then inc. appeal will lie to the Court of Sessions because of' non-applicability of the proviso (b) to section < to the said section. Alok Kumar Vs. The State, (1969) 21. DLR 2..

 

—Proviso to clause (b) of S.408 and sec. 410. Conviction by Sessions or Additional Sessions Judge—Irrespective of term of sentence appeal against such conviction will lie to the High Court Division. Where an Assistant Sessions Judge passes sentence exceeding 5 years appeal,lies to the High Court but when it is less than 5 years appeal will lie to the Sessions Judge. Md. Mustafa Mandal Vs. Stale (198.3.) 35 DLR 362.

 

S.408(b) : Asstt. Sessions Judge does not cease to be Asstt. Sessions Judge as envisaged under the proviso to clause (b) of s. 408 even though he-is to be treated as Addl. Sessions Judge under the proviso to s. 9(3) and therefore as against sentence passed by Asstt. Sessions Judge not exceeding 5 years appeal will lie to the Sessions Judge and not at all to the High Court Division. Md. Mustafa Mandal Vs. State (1985) 35 DLR 362.

 

S. 409, Proviso. Appeal against order of conviction passed by such Additional Sessions Judge deemed to have been appointed as Additional Sessions Judge irrespective of the terms of sentence of imprisonment, lie to High Court Division. Abdul Latif Vs. Nurjahan Begum, (1985) 37 DLR 204.

 

—Though "Federation or a Railway employee" were substituted by the words 'Central Government' in President's Order 1 of 1964—Railway employees are amenable to the jurisdiction of the Provincial Government. The appellant was a Railway employee who had been tried for criminal breach of trust, convicted and sentenced to imprisonment under section 409 P.P.C. by a Special Judge appointed by the Provincial Government.

 

It was contended that the Central Government was the appropriate Government in respect of railway employees in spite of transfer of the Railway to the Provincial Government and for this, reliance was placed on Clause (a) of section 2 of the Pakistan Criminal Law Amendment Act, 1958 read with President's Order I of 1964 wherein the words 'Federation or a Railway employee' were substituted by the words' Central Government'.

 

The elimination of the words 'Railway employee' from Clause (a) of Section 2 quoted above indicates that the intention of this adaptation was to bring the working of the Railways in accord with new constitutional changes and to give complete control of Railway employees to the Provinces. So, the appropriate Government at the relevant time was the Provincial Government. Iqbal Hussain Vs. The State, (1969) 21 DLR (WP) 165.

 

S.410 : Conviction by a Asstt. Sessions Judge, deemed to be Addl. Sessions Judge—Appeal against such conviction will lie alone to the High Court Division, irrespective of the quantum of sentence passed. Abu Taker Vs. Mst. Razi Begum (1985) 37 DLR 18.

 

—Under S. 410, Sessions Judgc-and Addl. Sessions Judge have co-equal power to pass any sentence, including that of death—Asstt. Sessions Judge appointed as addl. Sessions Judge may pass any sentence excepting sentence of death as provided in S. 31(4). Md. 'Mustafa Mandal Vs. State (1983) 35 DLR 362.

 

—Assistant Sessions Judge became Additional Sessions Judge in the course of the trial— Conviction by the Judge must be regarded as a conviction by the Additional Sessions Judge from which an appeal lies to the High Court. Askar All and others vs. State (1959) 11 DLR (SC) 226 : (1959) 9 PLR (SC) 1378 : (1959) PLD SC 254.

—Asslt. Sessions Judge deemed as Additional Sessions Judge and Additional Sessions Judge do not stand on the same level and not of equal status in law-Asstl. Sessions Judge's position is that of a 1st class Magistrate empowered specially u/s. 29C. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362.

 

S. 411A:—Appeal from the sentence of High Court. In a case where a person has been convicted by a Judge of the High Court sitting in the exercise of his inherent jurisdiction, there lies no inherent right of appeal to the High Court. Ismail A Munshi Vs. Crown (1956) 8 DLR (WP) 50.

 

S. 417—It may be noted that the Government being embarrassed by the orders of acquittal, might have applied to the High Court to quash them. But the omission of the Government to take such a step, which was'not incumbent would not convert an order made without jurisdiction into an order passed by a Court of competent jurisdiction. YusufAli Vs. Crown, (1950) 2 DLR(PC) 151

 

—Appeal against acquittal-governing considerations with the Court in such cases. The governing consideration in cases of appeal against acquittal must always be whether, in relation to the proved facts and circumstances, justice has been done in accordance with law. In particular, full weight must be given (I) to the fact that the appreciation of evidence by the trial Court is based upon the Court having seen and heard the witnesses, and (2) the fact of that Court having given the accused the benefit of any doubt serves to emphasise the need of giving full weight to that principle in the reappraiscmcnt of the evidence that is necessitated by the appeal. Abdur Rashid Vs. ' Chandu Master {1964) 16 DLR (SC) 605.

 

Copy of the memo, giving sanction of the Government to appeal against acquittal, must be filed with the appeal. NawabKhanVs. Slate (1960) 12 DLR (WP) 42.

 

—Delay in filing appealReasons that new clerk had displaced the fileNot sufficient for .condoning delay. PLD (1959) (Lah) 8.

 

—Sentence—Can be reduced suo motu by High Court in appeal under sec, 417. Slate Vs. Ghandal PLD I960 Pesh. 137.

 

—Several accuseds—Notice served to some of them. Where the appeal against acquittal of several accuseds was filed by the Government but only some of them could be served with notice.

 

Held : The appeal could proceed against the accused respondents who had been served with notice and that the appeal could be heard and decided against the others after they had been served. State Vs. Karamal PLD 1960 Pesh. 126.

 

—Appeal against acquittal. In a revision petition from acquittal in-a murder case, made by a private party, the Advocate-General upon notice from the High Court admitted that the Government did not like to appeal from the order of acquittal. Thereupon the revision petition was disposed of by the High Court declaring that the order of acquittal was wrong but the High Court refused to direct a retrial. The Government thereupon put in an appeal from acquittal in which the only grounds suited were that the appeal was within time and that the order of acquittal was improper.

 

Held:   The appeal was incompetent. The communication of the Government's decision not to appeal was final. Crown Vs. Sultan Mahammed (1955) 7 DLR (FC) 78.

 

—High Court not bound be hear appeal on merits in all circumstances. Crown Vs. Sultan Mohammad, (1955) 7 DLR (FC) 78.

—Appeal by Government against acquittal-Appeal against partial acquittal permissible, Respondent in such a case is entitled to argue that conviction for the lesser offence is not valid. Govt. ofPak. Vs. Mafiz & others (1957) 9 DLR 500.

 

—High Court not bound to accept the findings of the trial Court. Govl. of Pakistan Vs. Mafii, (1957) 9 DLR 500.

 

—In an appeal against acquittal, the High Court should confine itself to the specific grounds raised in the memorandum of appeal by the Government and must not travel beyond it. Govt. of Pakistan Vs. Mafiz (1957) 9 DLR 500.

 

—Before an order of acquittal passed by the Sessions Judge is reversed, it must be shown thai the judgment of the Sessions Judge was ' unreasonable or manifestly wrong. If two conclusions were equally possible, an order of acquittal should not have been reversed. Ahmad Vs. Crown (1951) 3 DLR (FC) 377.

 

—An Appellate Court could not convert a conviction for a lesser offence into one for a higher offence in appeal and then enhance the sentence under its rcvisional powers without there being an appeal against the acquittal by the Crown under the section. Boga Vs. Crown (1954) 6 DLR (WP) 130.

 

—Unless the order of the lower Court directing the acquittal of an accused person is manifestly perverse, the appellate Court will not interfere with the order of acquittal. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13.

 

—Advocate-General who is not a Public Prosecutor within the meaning of section 492, Cr.P.C., is not competent to present an appeal from acquittal-Conviction of respondent in such an appeal, held void for lack of jurisdiction. 7955 PLD (FC) 79.

 

—Provincial Government is to decide against which of the several acquitted accuseds it will prefer an appeal. Omission to prefer appeal against the others of them is no ground for dismissal of government appeal. PLD (1955) (Lah.) 271.

 

—Appeal against acquittal by Crown—Court will interfere only when order of acquittal is mainfestly perverse. PLD 1955 (Bal.)

 

—Where the statements on which the trial judge had practically entirely based his judgment of acquittal were not borne out by the record and the judgment contained more than one gross mis-statement, rejecting evidence of witnesses on unconvincing grounds, acquittal of the accused was set aside on appeal of the Crown. PLD 7957 (Kar.) W.

 

—Appeal from acquittal—Prosecution to show not only that the accused is guilty, but also that the acquittal is based on unreasonable and unsound grounds. PLD 1950 (Bal.) 24.

 

, —Delay beyond statutory period in filing appeal against acquittal can only be condoned when exceptional circumstances exist. Stale Vs. Golam Shah (1959) 11 DLR (WP) 60:1959 PLD (Lah.) 8.

 

—No appeal lies against an order of acquittal passed by a Special Magistrate under Act X ef 1956. Provisions of section 417 not applicable to such a case. Superintendent & Remembrancer of Legal Affairs. Covt. of E. Pak. Vs. Syed Bazlur Rahman (1959) 11 DLR 504: 7959 PLD (Dae) 200.

 

—Order of a acquittal cannot be altered into one of conviction. An order of acquittal cannot be altered into one of conviction by the High' Court except where an appeal by the Provincial Government has been presented under section 417 but the High Court can, in exercise of its powers of revision, set aside an order of acquittal and order a re-trial. Where the order of acquittal is passed by a Court of competent jurisdiction and in which the entire evidence for the prosecution has been recorded, the High Court should be reluctant to order a retrial in revision because such an order means practically a direction to the Subordinate Court, to which the case is sent, to convict. PLD 1950 (Lah.) 239.

 

—Interference justifiable only if the lower Court's judgment is manifestly wrong. PLD 1952 (BJ) 26.

 

—Acquittal order by a Court not having jurisdiction ultravires even if not challenged -by way of appeal. The contention was that as the order of acquittal passed by the Magistrate in the first prosecution were not appeal from, they became binding on the expiration of the period of limitation under Art. 147 of the Limitation Act.

 

—If the orders of acquittal is passed by a Court of competent jurisdiction, though wrongly they would be binding unless set aside in appeal. But if the orders were a nullity there was nothing to appeal against. Yuxuf All Vs. Crown (1950)'2 DLR (PC) 757.

 

—Committing Court framed charge under section 302 P.P.Code—Sessions Court altered the charge to one under section 304(1) P.P.Code and convicted the accused on pleading guilty under section 304(1)—It can hot be said that there had been acquittal of the accused u/s 302 and therefore no appeal under section 417 would lie. The accused was committed to the Court of session for trial under section 302, P.P.C. The Sessions Judge amended the charge and altered the offence to one under section 304 Part 1., P.P.C. and convicted the accused under the latter section on his pleading guilty to that charge. The State filed an appeal under section 417 and it was contended that the charge framed by the committing Magistrate was the real charge and it should not have been amended by the Sessions Judge without its having been first read out to the accused in accordance with section 271. It was on the other hand submitted that the appeal under section 417, in the case.was not competent as the accused had not been acquitted of the offcrice for which he was tried. Sessions Judge is competent under sections 226 and 227, to amend the charge after a person is committed to his Court for trial. The sessions Judge, therefore, did not commit any illegality in amending the charge when he reduces a charge u/s 302 to one under section S.228, Cr.P.C. Such amendment of the charge does not amount to acquittal of the original chargp framed by the Committing court and therefore n4 appeal would lie under Section 517 Cr.P.Code. The State Vs. Abdul Zahid, (1968) 20 DLR (WP) 81.

 

—The cordial principles followed by this Court in cases relating to appeals from acquittal arc that an accused person who has once been acquitted should not be found guilty unless it is obvious from the facts of the case and the judgment of the lower Court that a completely perverse view of the evidence has been taken PLD 1951 (Bal) 7.

 

—If the period of limitation in filing an appeal against an order of conviction is not extended the result can be that an innocent person may suffer punishment which he does not deserve, but if the same course is followed in the case of an order of acquittal all that can possibly result is that a guilty person may escape punishment which he deserves. A period of six months is allowed to the Provincial Government to present an appeal under section 417, Cr.P.C. against an order of acquittal and, therefore, this long period should be extended only where exceptional circumstances exist. Slate-Vs. Ghulam Shah. (1959) II DLR (WP) 60.

 

1864

Constitution of Pakistan, 1962 -23

Citation: (1967) 19 DLR (WP) 9, (1975) 28 DLR (SC) 170, (1976) 28 DLR. 341, (1978) 30 DLR 173, (1986) 38 DLR 27, (1984) 36 DLR 111, (1971) 23 DLR (Pesh) 12, (1966) 18 DLR (WP) 130, (1961) 13 DLR 1=(1961) PLD (Dae) 513, (1956) 8 DLR (FC) 50, (1953) 5 DLR (FC) 39

Subject: Constitution of Pakistan

Delivery Date: 2018-09-13

Appeal against acquittal—Principles to be followed in dealing with such appeal : In deciding an appeal against acquittal what is to be borne in mind is :

 

(1)  The view of the trial Judge as to the credibility of the witnesses.

(2) The presumption of innocence in favour of an accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial.

 

(3) Right of an accused person to the benefit of any doubt.

 

(4)   The  slowness  of appellate  Court  in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The State Vs. Umed All and others, (1967) 19 DLR (WP) 9$:

 

—An order of acquittal can be appealed against only under S.417. The scheme of section 423 itself shows that when appeals against conviction are brought before Ihe appellate court by the convicted persons, it is only with the order of conviction and matters incidental thereto that fall to be decided by the appellate court. An order of acquittal passed in favour of an accused person can be challenged only by an appeal as provided by section 417 of the Code. Tozammel Hussain Chowdhury Vs. State (1975) 28 DLR (SC) 170.

 

—Acquittal order not ordinarily to be interfered with when further superseded with long lapse of time. Manifest illegality causing grave injustice, makes an exception. Esaruddin Mondal Vs. Abdus Sobhan Sarkar (1976) 28 DLR. 341.

 

—When a further enquiry can be directed by Sessions Judge against the order of the Trial Magistrate. Salehuddin Vs. State (1978) 30 DLR 173.

 

(Read with sees. 5 and 29 Limitation Act). The Limitation Act is a general law on limitation whereas the Criminal Procedure Code which prescribes filing appeal against acquittal under s. 417 is a special act and in view of the provision of section 29 of the Limitation Act, provision of s. 5 of the Limitation Act cannot be invoked for extending lime for filing appeal against acquittal. Authorised Officer. CD A Vs. Stale (1986) 38 DLR 27.

 

—Under s.417 Government only can file an appeal against an order of acquittal. Authorised Officer, CDA Vs. State (1986) 38 DLR 27.

 

8.417(2). From an order of acquittal in a case instituted on complaint, an appeal by the complainant on a point of law will lie before the High Court Division, but no revision will lie in such a case to the High Court Division. No revision will similarly lie before a Sessions Judge including an Asstt. Sessions Judge deemed an Addl. Sessions Judge to whom such a case in revision may be transferred. All Hossain Vs. The Stale (1984) 36 DLR 111.

 

S. 417(3) read with S..5 of Limitation  Act. High Court Division not competent to condone delay in case of an appeal filed after the expiry of 60 days under S. 417(3) Cr.P.C. from the date of acquittal. Authorised Officer, CD A Vs. State (1986) 38 DLR 27.

 

8.418(2):—Rule    for    enhancement    of

sentence. Where a person has been convicted and sentenced at a jury trial and a rule has been issued on him to show cause why sentence on him should not be enhanced, if the case be such that the offence involves the sentence of death—the High Court, in dealing with the Rule, has all powers it would have if a death sentence had been passed and a reference made under section 374 Criminal Procedure Code.

 

Convicted persons would be entitled to argue the appeal on facts as well, in view of the Rule for enhancement of sentence which could possibly extend to a death sentence. Khuli Matbar Vs. Crown S DLR 35.

S.420 : Jail appeal filed beyond time and not also accompanied by an application for condonation of delay —High Court suo motu condoned the delay and admitted the appeal to prevent miscarriage of justice committed by the lower court. Time barred appeal may be converted by the High Court into a revision and powers under section 423 Cr.P.C. can therein be exercised. Rehaman Gul. Vs. The State. (1971) 23 DLR (Pesh) 12.

 

—Ss. 420 and 421: Proviso—Appeals from jail as well through the counsel.

When an accused had preferred two appeals, one from jail and the other through counsel, to the same Court, the dismissal of the jail appeal is not a bar when the appeal filed through counsel is pending before the Court for hearing. So also the subsequent dismissal of the appeal filed through counsel, (on the ground that the Court had no jurisdiction in view of the previous dismissal of the jail appeal) is illegal. Shada Vs. State (1966) 18 DLR (WP) 130.

 

S.421: Inherent power of the High Court— Application for admission of appeal dismissed not on merits but because Appellant did not surrender. When such an application can be restored for hearing.

 

Held: The order rejecting the application for admission of appeal tantamounts to a refusal to entertain or hear the appeal. It is not an order made under the provisions of the Code of Criminal Procedure, and such an order is not a judgment within the meaning of sections 367 and 369 of the said Code. There was no consideration of the petition of appeal filed by the appellant or of the judgment pronounced by the trial Court. There will be no rc-hcaring of the appeal because it has never been heard nor it will be a review of the judgment because no judgment has ever been given. Babu Lai Agarwala Vs. State (1961) 13 DLR 1=(1961) PLD (Dae) 513.

 

—Summary     dismissal     of     appeal.

Summary dismissal of appeal without calling for record is inadvisablc^Summary dismissal is a good ground for special leave to appeal to the Federal Court. Gul Md. Vs. Crown (1956) 8 DLR (FC) 50.

-—It is incumbent on an Appellate Court, before dismissing an appeal under section 421, to find that there is no sufficient ground for interference. Cases which raise complicated questions of fact and law should be dealt with in such a manner that it should be apparent from the Judgment that the Appellate Court has applied its judicial mind to all the grounds urged before it, and has found no force in any one of them. Khalil Vs. Crown (1953) 5 DLR (FC) 39.

 

—An order of summary dismissal must indicate in brief the reasons which led the Court to reach the conclusion that there was no sufficient ground for . interference. It is true that this section gives the Appellate Court power to dismiss appeal summarily but that power cannot be exercised in an arbitrary manner. Khalil Vs. Crown (1953) 5 DLR (FC) 39.

 

—-The Appellate Court should be most reluctant to exercise the discretion vested in it under section 421 unless: the case is of such a simple nature that a mere perusal of the judgment shows unmistakably that no substantial argument, can be addressed to the Court on behalf of the convicts. In a case involving complex questions the record should have been sent for, so that the learned Judges could deal adequately with the grounds for appeal preferred before them and come to an independent finding and form their own conclusion. Khalil Vs. Crown, (1953) 5 DLR (FC) 39.

 

—The Appellate Court must also realise that its duty as an Appellate Court is very much more onerous in cases tried with the aid of assessors than in cases where jury trials are held. Khalil Vs. Crown (1953) 5 DLR (FC) 39.

 

—It was contended on behalf of the petitioners that they had not got a fair hearing in the High Court, as their appeal was summarily dismissed without even sending for the record of the case. It was contended that the case out of which the appeal had arisen was a complicated one and involved difficult questions of fact and law. Such appeal, it was submitted, were not liable to summary dismissal under the provisions of section 421.

 

Held: This contention raises a question of principle of general importance. Khalil Vs. Crown (1952) 4 DLR (FC) 199.

 

—Section 421, docs not require that the Judge in rejecting an appeal summarily must state all that he docs for his rejecting the appeal summarily. Montazur Rahman Vs. Crown (1952) 4 DLR 200.

 

—Once an appeal is received it should not be dismissed merely because the appellant or his-pleader failed to appear to support the petition of appeal, but the Appellate Court must consider whether there exists sufficient grounds for its interference, and must judicially determine the appeal on the merits. Sree Kanli Karmaker Vs. Crown (1952) 4 DLR 588.

 

—The Code of Criminal Procedure docs not permit the dismissal of an appeal on the ground that the appellant does not appear to support it. If the appeal is not dismissed summarily under section 421, its disposal is governed by section 423 and notwithstanding non-appearance of the party, the Court is bound to send for the record, peruse it and give judgment. Md. Yar Vs. Crown 2 PCR 20.

 

—District Magistrate who has ordered the dismissal of a criminal appeal merely by reason of the non-appearance of the appellant, is competent to set aside such order and thereafter to hear and decide the appeal according to law. Md. Yar Vs. Crown,! PCR 20.

 

—Summary dismissal not proper when facts are not very simple. Where the facts of a case are not very simple, the Appellate Court without summarily dismissing the appeal should! call for the records of the case. Mir Baksha Barker Vs. State (1958) 10 DLR 451.

 

—Summary dismissal of criminal appeal for non-prosecution, illegal. An appeal against conviction under sections 420 and 468 P.P.C. was fixed for hearing before the High Court. On that date when the matter came before the Court neither the appellant nor his counsel was present and therefore, it was dismissed for non-prosecution.

 

Held: Absence of the appellant or his pleader docs not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence of the appellant.

 

Dismissal of the appeal by the High Court for non-prosecution is, therefor, not sustainable in law. Mohammad Ashiq Faiqir Vs. The Slate, (1970) 22 DLR (SC) 63.

 

—Sessions Court on appeal u/s 421 Cr.P.C. should not dismiss it summarily but give reasons in its judgement showing that points arising in the case have been duly considered on perusal of the judgment of Trial Magistrate as well an memo of appeal presented before him. It is true that section 424 of the Code of Criminal Procedure gives a power to the appellate court to dismiss an appeal summarily. It is not at all- proper and desirable for the last court of fact to invoke the powers under section 421 Cr.P.C. and dismiss the appeal summarily without giving proper reasons indicature application of mind lo the facts and law involved in the case.

 

While exercising its powers under section 421 the Court must lake care to make it apparent that Ihe power has been exercised with due regard to judicial considerations. The Court should give some reasons which may indicate to a superior court that the questions arising in the case have been duly appreciated, and the simplicity or the gravity of the offence charged has been taken into consideration.

 

Section 421 Cr.P.C. enjoins upon the appellate Court to pursue not only the impugned judgment and order of conviction and sentence but the petition i.e. mcmorandujn of appeal as well. It is elementary that unless the court notices the grounds of appeal it can not be said to have appreciated the grievances of the appellant. Mere perusal of the impugned judgment and order is certainly not enough for disposing of an appeal. Ekabbar All Vs. State. (1980) 32 DLR 48.

 

—High Court Division is under obligation to examine the whole case on merits in appeals filed against conviction and cannot confine itself to the question of sentence only, even though that was the only issue pressed before it. In view of the provision of s.423 Cr.P.Codc a duly is cast on the appellate court to dispose of the appeal on merits. Md. Jashimuddin Vs. The State. {1986) 38 DLR (AD) 35.

 

S.422: Appellant a fugitive from jail— Appeal may be decided in his absence after hearing his Counsel. Awal Khan Vs. Stale PLD 1957 (PA) 75.

 

Section   423.

Synopsis

1. Acquittal

 

2. Alteration of conviction

 

3. Alteration of finding

 

4. Appreciation of evidence

 

5. Dismissal in default

 

6. Enhancement of sentence

 

7. Power of Appellate Court

 

8. Reference or Revision

 

9. Retrial

 

10. Withdrawal of appeal.

 

1.   Acquittal

8,423: Acquittal—Appellate or rcvisional Court can pass sentences of punishment which arc in excess of the power of the Magistrate acquitting the accused—this power should be sparingly used. Munir Vs. State (1957) 9 DLR (SC) 125.

 

2.   Alteration   of  Conviction.

—Reversal of the acquittal of the accused by the judgment of the High Court and its replacement by a conviction (by the Appellate Division of the Supreme Court) is possible only if the Appellate Division be satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged. Unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported lo acquit is at all supportable the Supreme Court will be reluctant to interfere with ihc order of acquittal. Siraj Din Vs. Kala (1964) 16 DLR (SC) 94.

 

S.423(I)(a)-Accuscd acquitted of charge under sections 302/149, P.P.C., but convicted under section 148, P.P.C.-Appeal by accused-High Court after notice to the accused convicted them under sections 302/149 imposing a life-sentence in exercise.of its rcvisional powers-Conviction under scclions 302/149, held illegal. Shcra Vs. Crown (1954) 6 DLR (FC) 80.

 

4. Appreciation  of evidence

—The High Court in appeal will give due weight to the view token of any piece of evidence by the Sessions Judge and the Assessors. Where, therefore, the Sessions Judge and the Assessors were agreed in accepting the evidence of a particular witness and his identification of the accused, the High Court will not lightly interfere. Chandra Kama Vs. Crown (1954) 6 DLR 324.

 

5.  Dismissal  in  default

—The Code of Criminal Procedure docs not permit the dismissal of an appeal on the ground that the appellant docs not appear to support it. If the appeal is not dismissed summarily under section 421, its disposal is governed by section 423 and not withstanding non appcarencc of the party, the Court is bound to send for the record, peruse it and give judgment. Md. Yar Vs. Crown 2 PCR 20.

 

—A District Magistrate, who has ordered the dismissal of a criminal appeal mcarcly by reason of the non-appearance of the appellant, is competent to set aside such an order and thereafter to hear and decide the appeal according to law. Md Yar Vs. Crown 2 PCR 20.

 

6. Enhancement of sentence

— Fine reduced, .in default imprisonment enhanced illegal. The trial Magistrate convicted and sentenced the accused to pay a fine of Rs.100/, in default, rigorous imprisonment for 20 days. There was an appeal and the Additional District Magistrate, in appeal, maintained the conviction but reduced the sentence to a fine of Rs. 3()/- each, in default, rigorous imprisonment for one month each.

 

Held: This is illegal as there is no provision in Criminal Procedure Code whereby the Court of Appeal could enhance the term of imprisonment in default of payment of fine while reducing the quantum of fine. Abdul Shaikh Vs. Johuruddin Shaikh (1959) 11 DLR 9=1959 PLD (Dae) 340.

 

7. Power of Appellate Court.

—Once an appeal is admitted the Appllatc Court must dispose of the same under section 423 of the Code on the merits and not dismiss it for - non-appearance of the appellant or his lawyer. When the lawyer of the appellant stated that he had no instruction to argue the appeal, it was the clear duty of the Appellate Court to peruse the entire record and to dispose of the appeal in accordance with the provisions of section 423. Hafiz alias flafizuddin Vs. State (1960) 12 DLR 571: 1961 PLD (Dae) 78                                               

 

—An Appellate Court may award sentence on a charge framed by the trial Court but on which, though convicted by the trial Court, no sentence was passed. Madan Lai Agarwala Vs. State (7960) 12 DLR 353:1960 PLD (Dae) 813.

 

—Power of the Appellate Court in disposing of appeal.

Per Akram, J.-Thc Statutory right of appeal 1 confers a right of rc-hcaring of the whole dispute unless expressly restricted in scope and the Appellate Court is not confined to the reasons which have been given by the Court below as Ik ground of its decision. In an appeal under scclion 423, the Appellate Court has to consider Ihc controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court, Imranullah Vs. Crown (1954) 6 DLR (FC) 65 (76).

—Per Cornelius, J. The hearing of an appeal is not a rc-hcaring but only a hearing by a Court of error. The expression 'hearing' is employed in sec. 423(1) to indicate compendiously both the right of address possessed by the appellant as well as the duty of listening to the address imposed upon the Court. It is an expression of the simplest kind, and consequently must be given the widest connotation. It is impossible to read into the word 'hearing' anything in the nature of an obligation as to the pattern of an argument or the form which it is lo follow. Imranullah Vs. Crown (1954) 6 DLR (FC) 65 (76)

 

—The powers to the Appellate Court to alter a conviction are very wide under section 423, but they are subject to the condition that the altered conviction should not be such which could have been recorded by the trial court.

 

Sections 236 and 237, Criminal Procedure Code, made the conviction of the appellants under section 460 of the Pakistan Penal Code lawful in spite of the fact that they were not charged under that section but only under section 302, Pakistan Penal Code. Mina Vs. Crown PLD 1952 (Lah.) 11.

 

—It does not appear that the appellants are likely to be prejudiced if their appeal be disposed of by the High Court itself but, on the other hand, they are likely to be prejudiced if the case is sent back for retrial. It may be stated, that if the evidence upon which the guilt of the appellants can be founded, are already on record then there is no necessity for having fresh evidences recorded after framing the charge but, on the other hand, if such evidences are not already there, then it is not proper to allow the prosecution to produce them and try to fill up the lacuna, if any. In any view of the matter the order of retrial, in the instant case, docs not appear to be justified. Ashraf Mia Vs. Bangladesh (1975) 27 DLR (Appl. Dim).

 

S.423: Powers cxcrciscablc by the High Court in appeal and in revision with two exceptions arc similar in all respects. The exceptions arc that in an appeal a sentence may not be enhanced whereas tfiis may be done in revision'and secondly, that in revision an acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally cxcrcisablc in appeal as it may be exercised in revision by the High Court. Md. Shamsul Iloque Vs. The State, (1968) 20 DLR 540.

 

—Appellate Court's disposal of an appeal without considering relevant evidence on record— illegal. Md. Ismail Vs. Abu Bakar Siddique, (1971) 23 DLR 183.

 

—Judgment-Appellate court's judgment-Independent assessment of evidence by itself. An appellate Court which is hearing an appeal both on facts and law must ilself examine the evidence on record and must come lo independent conclusions on all points at issue. In other words, the appellate Court should discuss the evidence and other materials on record in a manner which would indicate that it has applied its mind independently, and should not base its conclusions on the discussion found in the judgment of the trial Court. Tozammal Ilossain Vs. The State, (1973) 25 DLR 330.

 

8. Reference or Revision.

Combined   effect   of  sections   423   and 439. The combined effect of sections 423 and 439 Cr.P.C, is that the High Court can, acting on the appellate side, alter the conviction from one under section 304-A, P.P.C. to that under section 304 Part II, P.P.C., and then enhance the sentence, if so deemed fit, on the rcvisional side. PLD 1950 (Lah.) 364.

 

S.423 : A Time barred appeal may be converted by. the High Court into a revision and power u/s. 423 Cr.P.C. can therein be exercised. Rahman Gul Vs. Stale (197!) 23 DLR (Pesh)12,

 

—Reference to the statutory provisions relating to powers exerciscablc by the High Court in appeal and in revision will show that with two exceptions, powers exerciscablc in the two modes arc in all respects similar. The exceptions arc thai in an appeal a sentence may not be enhanced whereas this may be done in revision and, secondly, that in revision an-acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally cxcrciscablc in appeal as it may be exercised in revision by the High Court. No restriction is placed upon the High Court's Power in either case to examine all the facts and circumstances as well as the entire evidence, either in appeal or in revision, for the purpose of reaching the findings necessary for the disposal of the case. Crown Vs. Sultan. Mahmood (1955) 7 DLR' (FC) 78 (83).

 

9.   Retrial

—Re-trial. When not proper—Evidence of circumstances which do jiot support prosecution case but lends support to defence—Prejudicing the issues will interfere with course of justice. When the trial Court's conclusion arc (in judgment of acquittal) not supported by balanced statement of relevant facts or by truly reasoned arguments—Retrial order is a proper order. Abdur Rashid Vs. State, (1962) 14 DLR (SC) 263.

 

S.423: High Court competent to order retiral. After having come to a finding that the evidence showed that the appellants may have committed some other offence with which they should be charged, the learned Judges of the High Court are competent to decide the question of guilt of the appellants themselves instead of sending back the case for retrial. Ashraf Mia Vs. Bangladesh (1975) 27 DLR (Appl, Divn.) 106.

 

—Where order of retrial is likely to prejudice the accused persons and evidence on record sufficient to dispose of the case by the High Court order of retrial can be supported. Ashraf Mia Vs. Bangladesh (1975) 27 DLR (AD) 106.

 

—Where order of retrial is likely to prejudice the accused persons and evidence on record sufficient to dispose of the case by the High Court order of retrial cannot be supported (Re-trial by order of appellate Court). Salehuddin Vs. State (1978J 30 DLR. 173.

 

—Under clause (4) of section 439, the High Court cannot convert a finding of acquittal into one of conviction, but it can, under the powers conferred under section 423, order the accused to be retried by a Court of competent jurisdiction subordinate to such Appellate Court. Khairdi Khan Vs. Crown (1953) 5 DLR (PC) 185 (190-191)

 

—While dealing with an appeal under section 423, the High Court suo molu issued a Rule upon persons who had been acquitted by the trial Court to show cause why the order of their acquittal should not be set aside or such other or further orders passed as might seem to the Court fit and proper. The High Court has the power to set aside the order of acquittal and to order a re-trial. The decision of the Federal Court in case of Shera and 6 others Vs. the Crown (6 DLR PC: 80) lends no support to the proposition that the High Court has no such power, Profulla Das Vs. Crown (1954) 6 DLR 439.

 

—The Appellate Court set aside the order of conviction and sentence for want of valid sanction and directed a retrial after sanction.

 

Held: The order Passed was illegal, llurmal Ali Vs. Crown (1952) 4 DLR 305.

 

10. Withdrawal of appeal.

—Appeal—Withdrawal of appeal by the convicted appellant—No legar bar, Every privilege given to a party by the law maybe waived at the option of that parly. A right to appeal is privilege given by the law and the party concerned is a liberty to insist upon or abstain from the exercise of the right. Muhummad Aslam Vs. State (1959) 11 DLR (SC) 200.

S. 423(I)(b)-Appellatc court can alter the finding if it maintains the sentence or induces it. Tozammcl Ilusain Chowdhury Vs. Stale (1976) 28 DLR (AD) 170.

 

—So what the appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence and as such there is no difficulty to hold that section 423(I)(b) postulates the presence of sentence against the accused and it is in that sense that it empowers the appellate court to reverse the finding of guilt and sentence and then to pass any one of the appropriate orders specified therein. Tozammel usain Chowdhury Vs. State (1976) 28 DLR (AD) 170

 

S.423(I)(a)(b) and S. 417: Ingredients of clause (a) and (b) of S. 423(1)—Appeal against acquittal provided in s. 417, Section 423(I)(a) expressly deals with an appeal from order of acquittal and 423(I)(b) against an order of conviction. Section 423(I)(a) empowers the Appellate Court to reverse the order of acquittal and direct that further enquiry be made or that the accused be tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. It is necessary to bear in mind that appeal against acquittal is to be, filed under 'S.417 of the Code of Criminal Procedure and that High Court is the only forum where an appeal under section 417 can be filed against an original or an appellate order of acquittal. Even though the Court of Session is an appellate court no appeal against Ihe order of acquittal passed by any of the aforesaid courts would lie to the Court of Session. Tozammel Husain Chowdury Vs. Stale (1976) 28 DLR (AD) 170.

 

S.423(I)(a)(b)(c)-Whcn a person convicted by a magistrate has a right of appeal under section 408 of the Criminal Procedure Code, his appeal is clearly against all orders passed against him by the Magistrate and not only against the order convicting the appellant. The order of conviction would fall under sub-clause (b) of clause (I) of section 423 of the Criminal Procedure Code, and that sub-clause only deals with the powers of the Appellate Court relating to the order of conviction. The powers of Ihe Appellate Court relating to any other order that may have been passed by the Magistrate are conferred by sub-clause (c). Ayoob Vs. Crown 2 PCR60.

 

—It is not open to the High Court in an appeal from a conviction by a convict who has been charged under section 302 but convicted under section 3()4(II), P.P.C. to alter the conviction from the latter section to the former and then by virtue of section 439 Cr. P.C., to enhance the sentence. The High Court has no power to alter a finding of acquittal into one of conviction under section 423(b). Crown Vs. Mouj All (1955) 7 DLR (WPC) I.

 

S.42'3(l)(b) : Alteration of findings are alteration of conviction. There is no difference is principle between the alteration of a conviction for abetment of an offence into a conviction for the substantive offence and the alteration of a conviction for attempt into one of conviction for the completed offence. Where a finding of acquittal has not been reversed into one of conviction, the sentence may be legitimately enhanced in revision. Fazal Khan Vs. crown (1955) 7 DLR (WPC) 10.

 

—An appeal is a re-hearing and a" consideration of the entire controversy between the contending parties unless limited in its scope by law. Consequently in an appeal from a conviction on some out of the several charges, the question of acquittal on the remaining charges also comes in for consideration. The expression 'alter the finding' means alter the finding forming the basis of a conviction under a particular section to a different finding which may result in a conviction under some other section. The fact that originally there may have been an acquittal under the other section cither expressly or implicdly, makes no difference. I do not think that the word 'reverse' instead of 'alter' would have been a better word for the purpose of conveying that meaning. Shera Vs. Crown (1954) 6 DLR-(FC) 80.

 

—Accused charged and convicted under sections 376/511, P.P.C. Finding may be altered in appeal to one of conviction under section 376 P.P.C., and sentence may be enhanced under section 439, Cr.P.C. Fazal Khan Vs. Crown (1955) 7 DLR (WPC) 10.

 

—Sessions Court not competent to alter an acquittal order—'Alter the finding' can not mean reversing the finding of acquittal a$ in that case it would make S.423(I)(b) redundant. If the expression "alter the finding" was to include the power to reverse the finding of acquittal it is difficult to understand why section 423(I)(a) should have been enacted at all.

 

Section 423(I)(b) : was not intended to confer power on the appellate court to alter the finding of acquittal. If it were so intended, the whole clause would have been differently worded and there would have been no necessity to enact section 423(I)(a). The two clauses arc separate and not conjoint. Tozammel Ilussain Chowdhury Vs. State (1976) 28 DLR (AD) 170.

 

1865

Constitution of Pakistan, 1962 -24

Citation: (1976) 28 DLR 371, (1982) 34 DLR 16, (1976) 28 DLR (AD) 170, (1954) 6 DLR (FC) 80, (1972) 24DLR162, {1958) 10 DLR 346, (] 988) 40 DLR 248, (1959) PLR (SC) 1378: (1959) PLD(SC)251, (1957) 9 DLR 122, (1970) 22 DLR 515, (1980) 32 DLR 51, (1958) 10 DLR 372

Subject: Constitution of Pakistan

Delivery Date: 2018-09-13

—"Alter the finding "-explained, An acquittal order can be changed to one of conviction.

The expression "alter the finding" means alteration on the bais of a conviction under one section to different finding which may result in conviction under a different section, but maintaining sentences. Therefore, in the instant case both the offences being punishable under section 25 of the Special Powers Act, the Appellate Tribunal was justified in altering the order of acquittal to conviction. Md. Amir llossain Vs. The Slate (1976) 28 DLR 371,

 

—Section 423 (l)(b) of the Cr. P.C. provides that in an appeal from a conviction the appellate court "may alter the finding". The word "finding" means the result of a judicial examination, specially into some matter of fact. Thus the expression "may alter the finding" clearly empowers the appellate court to consider the entire evidence against the accused appellant both as regards fact and law and to substitute its finding. Nabir Md. @ Nabiruddin Vs. The State (1982) 34 DLR 16.

 

S.423(l)(b)—Is confined to appeals against conviction of sentence. If a person is acquitted of one charge and convicted on another charge, the appellate court not competent to reverse acquittal order when considering his appeal against conviction on another Count.

 

Section 423(I)(b) is clearly confined to cases of appeals preferred against orders of conviction and sentence. It, is, therefore, impossible to hold that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence while dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. Tozammel llussain Chowdhury Vs. Slate (1976) 28 DLR (AD) 170.

 

—423(I)(b) postulates the presence of scnicnce against an accused and in that sense it empowers the appellate court to reverse the finding of guilt and sentence and then to pass any appropriate order. Tozammel llussain Chowdhury Vs. Slate (1976) (AD) 170.

 

S.423(I)(b) and S. 417: On one Count a person is acquitted and an another Count he is convicted. In an appeal only against acquittal, a conviction on the other Count can not be touched and so the vice-versa. Powers conferred by the expression "alter the finding" section 423(I)(b) docs not include the power to alter or modify the finding of acquittal the finding in the context, means the finding as to conviction and the power to alter the finding can be exercised only in cases as envisaged in the clause of section itself. Tozammel llussain chowdhury Vs. Stale (1976) 28 DLR (AD) 170.

 

S.423(I)(b)(2) "Alter a finding" "Alter a finding"— Reversal of a finding of acquittal and substitution therefor a finding of conviction cannol be covered by 'alter a finding' Shera Vs. Crown (1954) 6 DLR (FC) 80.

Contrary view—Subject to the other provisions of the Cr.P.C. namely, sections 233, 235 to 238, 433(2) and 426, the High Court in an : appeal from a conviction can under section 423(I)(b),(2) alter an acquittal into a conviction, Shcra Vs. Crown (1954) 6 DLR (FC) 80.

 

S.423(I)(b): The powers of the Appellate Court conferred by all the subclusc (I) arc clearly all powers which the Appellate Court may, in so far as they arc applicable, exercise on the same appeal, and there is nothing in section 423 to justify the contention that when an Appellate Court exercises its powers under one of the sub-clauses the other sub-clauses necessarily cease to have any application. Ayoob Vs. Crown. 2 PCR 60.

 

S.423(I)(c) : When the trial Court while convicting and sentencing an accused on a charge under the Abkari Act, also directed the confiscation of the boat of the accused in which excisable goods were carried, the Appeal Court can, not only interfere with the order of conviction and sentences of the accused, if it chooses, but can also interfere with the order of confiscation of the boat under sub-clause (c) of section 423(1) Cr.P.C. Ayoob Vs. Crovn. 2 PCR 60.

 

S.423(I)(c)(d) : The Appellate Court in disposing of an appeal under sec.423, Cr.P.C. against an order passed under section 118, Cr.P.Codc, set aside the trial Magistrate's order on the ground that the cadence was not properly recorded by the Magistrate and sent back thjs case to another Magistrate to proceed with the trial in ' accordance with the directions given by the Appellate Court.

 

Held: The order passed by the Appellate Court is in accordance with law and falls under sub-sections(c) and (d) of clause(I) of section 423, Cr.P.Code. The trial Court's order being reserved in appeal, it was necessary to pass an order consequential or incidental to the order setting aside Ihe Trial Court's order. Muradally Vs. Crown 1 PCR45."

 

—S.423(I)(d): Restoration order vacated by the appellate court on appeal—Such order upheld by the High Court. Though no appeal lay so far as the order of restoration of possession passed under section 522 Cr.P.C. is concerned yet the appellate Court is competent to pass such order under clause (d) of section 423(1) of the Criminal Procedure Code. Jogmaya Kunda Vs. Sudhir Kumar Kundu, (1972) 24DLR162.

 

S. 424. Judgment of the final Court of appeal on facts—Must contain indication that the Court applied its mind to the evidence to enable the Court of revision to judge whether or not there had been a proper appreciation of evidence. Kalu Bepari Vs. §W {1958) 10 DLR 346.

 

Sections 424, 432 and 367(1)—It is well settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 367(1) of Cr,P.C. Abut Basher & orsi Vs. The State (] 988) 40 DLR 248

 

—High Court's Judgment—High Court's judgment dismissing an appeal, without examination of facts or legal issues, and simply agreeing with the judgment of trial Court without considering the judgment of the Appellate Court which was in favour of the accused-High Court should have expressed its reasons for disagreeing with the views expressed by the Sessions Judge although Sessions Judge's judgment was without jurisdiction. Askar All and others Vs. State (1959) 11 DLR(SC) 226 : (1959) PLR (SC) 1378: (1959) PLD(SC)251.

 

—Judgments, if show appreciation of the points for decision, their consideration as well as reasons for finding, are proper judgments-Failure to follow prescribed form curable under sec. 537. Montazuddin Vs. Abdur Rahman (1957) 9 DLR 1.22.

 

Appellate     court's     judgment     in affirmation must consider  important facts. Judgment of appellate court confirming order of conviction cannot be sustained where appellate court did not properly consider important question of fact bearing on the alleged guilt of the accused. Ramjan All MondaiVs. The State (1970) 22 DLR 515.

 

Judgment of Court of appeal—Formulation of points  for  determination—conclusion to be arrived at on facts and law-­Discussion   of  evidence. It is well settled that a final Court of facts must formulate the point or points for determination in the case and give its decisions thereon on the basis of reasons. The Law enjoins that the appellate Court hearing an appeal on facts and Law must arive at independent conclusion on all the points at issue. The discussions of the evidence must show that the appellate court has applied his^mind independently to the points at issue.

 

Finding of Court of appeal on facts should at least give some indication in its judgment as to the application of its mind to the evidence on record from which the Court of revision would be in a position to judge whether there had not been a proper appreciation of the evidence on all the points falling to be decided in the case. Moksed All Vs. State (1980) 32 DLR 51.

 

— Contents of judgment in  appeal —

Requirements of section 367 applicable—setting down the conclusions without reasonings in support of them not a proper way of disposing of the appeal. Sana Mia Vs. Stale (1958) 10 DLR 372.

 

S.426 : Transfer of case-Expression of opinion by the Magistrate on evidence judicially recorded in one case is not a proper ground for transfer of another case pending before him between the same parties. Seigfried Forstner Vs. Miss. Sunno (1956) 8 DLR (WP) 114.

 

—Appellate Court referred to in sec. 426 does not include the Federal Court. Osman Qurashi Vs. Crown (1955) 7 DLR (WPC) 105.

 

—Bail to convicted persons dealt with in sections 426 and 435. Bail before conviction dealt with in sections 496 and 498.

 

S.A. Rahman,J.,-(Fazle Akbar, J. agreeing)--Question of bail has been dealt with in sections 426 and 435 and Chapter XXXIX of the Code. Under section 426 there is exercise of appellate jurisdiction and under section 435 that of rcvisional jurisdiction,' whereas the subject of bail to accused persons, prior to conviction, forms the subject of Chapter XXXIX and is partly covered by section 435. The two expressions namely, 'admitted to bail' and 'released on bail' are synonymous.

 

Section 498 should apply only to accused persons and not to those convicted of an offence. Section 426 of the Code grants power of bail to the appellate Court, in respect of convicted persons. Sub-section (2) of that section expressly enacts that such a power may be exercised by the High Court. That section confers no such powers on a Court of Sessions. If section 498 is construed as to include within its scope convicted persons, then its provisions would come into conflict with section 496, so far as the Court of Session is concerned. Section 498 should be held confined to the case of an accused person only. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38.

 

—Power to grant bail u/s.426 Cr.P.Code is taken away when a person has been convicted under P.O. 8/1972 or P.O. 8/1972 by a Special Tribunal or Special Magistrate—It has no reference to cases of conviction not under either of those two orders. Solicitor Vs. Syed S'anwar All (1975) 27 DLR (Appl. Divn.) 16.

 

—Bail—Suspension of sentence pending appeal—Release of appellants on bail—Sentence being in excess of one year Sessions Judge was not competent to grant such bail. Saidur Rahman Vs. The State , (1988) 40 DLR (AD) 281.

 

—Sees. 426 & 427: Chapter 39 Cr.P.C, deals with cases of persons arrested or detained without warrant by police officer or who appear or are brought before a Court at any stage of any investigation/enquiry or trial. This chapter does not deal with the cases of persons who are tried and convicted or acquitted, as their cases are specifically provided by secs.426 and 427 of the Code.

 

The earlier view that even the cases of convicted persons could be brought within the ambit of section 498 is no longer tenable. (Per Hamoodur Rahman. J.) Md. Ayub Vs. Md. Yakub. (1967) 19 DLR (SC) 40.

 

Section 426 & 435 : Bail to convicted persons dealt with in Section 426 aand 435. Bail before conviction dealt with in Sections 496 and 498. Md Ayub Vs. Md. Ayub (1967) 19 DLR .(SC) 38.

 

S.426 and sections 496-498 : Provisions of sections 426 and 427 are invokable regarding bail matter only in case of conviction or acquittal after trial and to persons who have been convicted or .acquitted after trial, Sections 496-498 have no application. Solicitor Vs. Syed Sanwar Alt.(1975) 27 DLR (Appl. Divn) 16.

A   person   who   has  been a   bailable   offence   can be S.426(I) convicted   of granted bail.

 

Sub-section (I) of s.426 of the Code empowers the trial Court to grant bail to a person convicted of bailable offence only, for the purpose specified therein, and obviously, it has no application to the case of a person convicted of a non-bailable offence. Solicitor Vs. Syed Sanwar Ali (1975) 27 DLR (Appl. Divn) 16.

 

8.426(2) : Neither the High Court Division can release on bail a person convicted under P.0.8 of!972orP.0.50of 1972.

 

The contention that the restrictions in the matter of bail to convicted persons as enjoined under Article 10 of P.O. 50 and Article 14 of P.O.8 were intended to apply only to the trial Court cannot be sustained. The restrictions obviously apply and were intended to apply to the High Court Division to which appeal lies from convictions under these Orders. The aforesaid view is in conformity with and follows from what was stated in paragraphs 19 and 20 of the judgment in the case of Jobed Ali. Solicitor Vs. Syed Sanwar Ali (1975) 27 DLR (Appi: Divin.) 16.

 

S.426(2A) : No bail can be granted to a person convicted under either P.O. 8 of 1972 or P.'O. 50 of 1972 by a trial Court acting u/s. 426(2A) Cr.P.Code.

 

Since Article 7 of P.O. 50 provides for a minimum sentence of three years' imprisonment and Article 11 of P.O. 8 provides for sentences ranging from death to transportation for life to imprisonment for not less than three years for the different categories of offences specified in the Schedule thereto, the offences under both the P.O. have been made non-bailable, according to Schedule II of the Code. It is, therefore, evident that a person convicted of an offence punishable under P.O. 50 or P.0.8 cannot be enlarged on bail by the trial Court in exercise of power under sub-section (2A) of section 426 of the Code. Solicitor Vs. Syed Sanwar Ali (1975) 27 DLR (Appl. divn) 16.

 

—Dismissal of appeal on the ground that the appellants did not surrender. Dismissal of appeal on the ground that the appellants did not surrender to their bail under sec. 426(2A). Cr.P.C.-not authorised by law. Nafajulla Vs. Crown (1953)5 DLR FC127.

 

—Bail allowed by trial Court after conviction— must fix a period for enabling the convict to obtain order of bail from the Appellate Court. Nafajullah Vs. Crown, (1953) 5 DLR FC 127.

 

—Person convicted of bailable offence filing appeal against conviction is entitled to bail as of right. It is the duty of the original Court to fix the period which is reasonably sufficient for the convict to prepare and present the appeal and also to obtain the necessary orders of the appellate Court under sub-section (I) of section 426, CrP.Code.

 

If the original Court is assured that the convict intends to present an appeal against the order of conviction, the Court is bound to admit the convict to bail. The word 'may' used in this sub-section has the meaning of 'shall' or 'must'.

 

A person convicted of a bailable offence and who has filed an appeal against the conviction and sentence is entitled to bail as a matter of right. Hata Vs. The State, (1968) 20 DLR (WP) 7.

 

S.427 : Section 427 was an independent section governing the grant of bail to an acquitted person against whose acquittal an appeal had been admitted for hearing. Muhammad Aslam Vs. The State, (1967) 19 DLR (SC) 445.

 

—High Court acting under section 427 of the Code may order arrest of an acquitted person and subsequently may also order his release. Superintendent & Remembrancer of LA Vs. Jobed Ali (1974) 26 DLR (SC).

 

—Sees. 427 & 426 : Chapter 39 Cr.P.C. deals with cases of persons arrested or detained without warrant by police officer or who appear or are brought before a Court at any stage of any investigation/enquiry or trial. This chapter does not deal with the cases of persons who are tried and convicted or acquitted, as their cases are specifically provided by secs.426 and 427 of the Code. The earlier view that even the cases of convicted persons could be brought within the ambit of section 498 is no longer tenable. (Per Hamoodur Rahman. ].) Md. Ayub Vs. Md. Yakub. (1967) 19 DLR (SC) 40.

 

Ss.   427,  426   and   sections  496-498   : Provisions of sections 426 and 427 are invokable regarding bail matter only in case of conviction or acquittal after trial and to persons who have been convicted or acquitted after trial, Sections 496-498 have no application. Solicitor Vs. Syed Sanwar All (1975) 27 DLR (Appl. Divn) 16.

 

—Provisions of s. 427 of the Code are unaffected by articles 8(1), 14 and 16 of the Collaborators Order. On a careful consideration of section 427 of the Code and Articles 8(1), 14 and 16 of the Collaborators Order we are of the view that the discretionary jurisdiction of the High Court Division under section 427 of the Code, which relates to persons who have been acquitted after having gone through the ordeal or a trial has been advisedly preserved by the law-maker. Superintendent & Remembrancer of LA Vs. Jobed Alt (1974) 26 DLR (SC) 1.

 

S.427(I) : Mere fact that one of co-accused was not c'hallaned by police is no ground for admitting other accused to bail-Discretion of Magistrate in allowing bail has to be exercised with care and circumspection and not at random. Dare Khan Vs. Usman Khan, (1968) 20 DLR (WP) 11.

 

S.428: Taking evidence in Appellate Court. Provisions of sections 375 and 428 of the Cr.P.C. are meant to be used in such a manner as to secure even-handed justice to both parties, and that they should not be utilized to cure all the infirmities in the prosecution case in the Appellate Court. Khan Vs. Crown (1955) 7 DLR (FC) 1.

 

—It does not make the slightest difference whether the additional evidence is required by the Court of is produced by the parties. Khan Vs. Crown (1955) 7 DLR(FC) 1.

 

—Despite the wide terms of sec. 375 of the Code, the powers given to the appellate Court are only meant to be exercised where the additional evidence was either not available at the trial or the parly concerned was prevented from proceeding either by circumstances beyond its control or by reason of misunderstanding or mistake. All Vs. Crown (1952) 4 DLR (FC) 551 (571); (1955) 7 DLR (FC) 1 (5).

 

—Conviction altered in appeal from S.302/149 to s.302/34, so far as two of the members of an unlawful assembly were concerned, and to s.325/149 with regard to the rest. If former alteration could be formulated only on record of additional evidence, allowing of fresh limited enquiry or re-trial advisable. Fazal Elahi Vs. Crown (1953) 5 DLR (FC) 44 (52).

 

—The powers to be exercised by an Appellate Court under sec. 428 are subject to two overriding considerations; (I) That the additional evidence is considered to be necessary by the Appellate Court in the interest of justice; and (2) that the accused is not dcfued his right to a fair trial. Fazal Elahi Vs, Crown (1953) 5 DLR (WP) 13 (26).

 

—While exercising these powers, Courts of Criminal appeal should never overlook the basic position that the duty of a Criminal Courtis fundamentally different from that of a Court of Civil Appeal. While the latter is a tribunal, inter parties, the Court of Criminal Appeal always has a third party before it, namely, society, and its discretionary powers are not controlled by rules of estoppel, waiver, etc. Fazal Elahi Vs. Crown, (1953) 5 DLR (WP) 13 (26).

 

—An accused person is not as of right entitled to rebut all evidence that may be taken by the Appellate Court in exercise of its powers under sections 428, 375 and 540 of the Code of Criminal Procedure. Fazal Elahi Vs. Crown (1953) 5 DLR (UP) 13 (26).

 

—If evidence is taken by an Appellate Court as to a new relevant fact and the proof of that fact enhances the incriminating evidence against an accused person, it is only fair that he should have a right to rebut the evidence so taken. In such circumstances he has a clear right to rebut the additional evidence. But, where a prosecution witness is re-called by the Appellate Court just only to have a point in his evidence clarified, neither the accused nor the prosecution can as of right claim rebuttal. Fazul Elahi Vs. Crown (1953) 5 DLR (WP)13.

 

—Further inquiry of additional evidence at appellate stage should not be ordered to cure infirmities in prosecution case-Denial of the accused's right to rebut such evidence amounts to a violation of the principles of natural justice. All Vs. Crown (1952) 4 DLR (FC) 551 (559).

 

S. 428 : To recall partisan witnesses to make additional statements at the appellate stage is an invitation for perjured evidence. Section 428 should be availed of by an Appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can, therefore, be expected to give an unbiased account of the occurrence. Alt Vs. Crown (1952) 4 DLR (FC) SSI (559).

—The provisions of sections 375 and 328 are meant to be used in such a manner as to secure even-handed justice to both parties. They should not be utilised to cure all the infirmities in th"e prosecution case in the Appellate Court. Alt Vs. Crown (1952-) 4 DLR (FC) 551 (559).

 

—The defence'asked for an opportunity to rebut tiie evidence of some prosecution witnesses who had been re-called and examined by the High Court at the appellate stage to elucidate certain points, but Ihe prayer was refused.

 

Held : The High Court did not exercise its discretion properly in refusing to grant an opportunity to the defence to rebut the evidence of the prosecution witnesses and this constituted a violation of the principles of natural justice. All Vs. Crown (1952) 4 DLR (FC) 551 (559)

 

—Valid sanction—requirement of.

Where the Sessions Judge, in appeal, found that Ihe prosecution did not lie because there was no proof that the person who signed the document granting sanction for prosecution had the authority to do so and having held that the document which purported to accord sanction was not legally proved lie sent back the case to the Magistrate directing "taking to additional evidence under sec. 428 on this point and for certifying the same" to the Sessions Judge.

 

Held: The order of the Sessions Judge directing the taking of additional evidence under sec. 428, CrP.Code, was illegal. GAmbia Vs. Crown (1951) 3 DLR 302.

 

—Section 428 may be used when there is already on record certain evidence and the Appellate Court thinks that either because of some formal defect in the evidence or for other similar reasons recourse may be had to the provisions of the section to bring on record additional evidence. The section was never intended to and can never be used to supply evidence of a valid sanction, the existence of which only could confer jurisdiction on the. Magistrate to try the offence. G. Ambia Vs. Crown (1951) 3 DLR 302.

 

—Some statements were incorporated in thev petition of revision which was moved on behalf of the accused before the High Court. These slatements did not form part of the record of the case on which was based the conviction of the accused by the trial Court. The learned Judges of the High Court, in arriving at their conclusion that the accused was guilty of the charge he was called upon to answer, accepted and relied on those statements made in the petition.

 

Held: The admission contained in the Petition for revision in the High Court cannot be taken into consideration in order to fill up the gaps'in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the trial Court. If any other material is sought to be used against the accused person, such material should be placed on the record after complying with the provisions of sec. 428 of the Code of Criminal Procedure. Fazlul Quader Vs. Crown (1952) 4 DLR (FC) 104 (JOS).

 

—An acquitted prisoner may give evidence against a co-prisoner but this must be subject to the considerations that additional evidence at the stage of appeal should only be called in special circumstances of real necessity for the dispensation of justice and that the evidence of*a co-prisoner even if he has been acquitted under a joint charge is likety to be tainted with the vested interest he has in maintaining his acquittal, and his readiness to do so at the cost of his less fortunate confere. Md. Sarfaraz Khan Vs. Crown (1953) 5 DIR (FC) 280(287).

 

Sections 429 and 37g--Function of the 3rd Judge to whom the case is referred. The plain reading of these sections shows that the third Judge to whom the case is referred need not agree with the finding of either of two judges. He is to give an independent opinion and then give his finding. Abdur Raziq Vs. State (1964) 16 DLR (WP) 73.

 

S. 429 : Upon difference of opinion the whole case is laid before the third Judge and his judgement becomes the judgement of the Court. Under the provisions of section 429, upon the difference of opinion between the Judges the case has to be laid before a third Judge and this necessarily means that the whole case to be referred to the third Judge and not merely the point or points on which the Judges differed. The judgment or order shall follow the opinion given by the third Judge. Mahim Mondal Vs. State (1963) 15 DLR 615.

 

S.431: Criminal appeal against sentence of fine does not abate on the death of the accused-appellant. Where an accused has appealed against the sentence of imprisonment and fine and before the appeal comes up for hearing he dies, that part of the appeal which relates to the sentence of imprisonment shall abate on the death of the appellant but the other part which relates to the sentence of fine shall not abate on the death of the appellant. Anwar Hossain Khan Vs. The State, (1970) 22 DLR 244.

 

Sections 432, 424 and 367(1)— Iris well settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 367(1) of Cr.P.C. Abul Basher & ors. Vs. The State (1988) 40 DLR 248.

 

S. 435 : Additional Magistrate can make reference to the High Court. No interference by the High Court in revision, when there is no substantial illegality or irregularity. State Vs. FazarAli (1957) 9 DLR 77.

 

—Revisional powers of Sessions Judge and High Court under section 435 are concurrent. High Courts, however, would be reluctant to entertain revision where a party fails to approach lower court in the first instance-In exceptional cases High Court may entertain revision directly. Muhammad Ehsan Vs. The State, (1968) 20 DLR (WP) 133.

 

—Bail to convicted persons dealt with in sections 426 and 435. Bail before conviction dealt with in Ss. 496 & 498. Md. Ayub Vs. Md. Ayub (1967) 19 DLR (SC) 38.

 

Section 435 & 426 : Bail to convicted persons dealt with in Section 426 aand 435. Bail before conviction dealt with in Sections 496 and 498. Md Ayub Vs. Md. Ayub (1967) 19 DLR (SC) 38.

 

—In order to enable the Sessions judge to resort to the provision of section 435 it is fundamental that the particular case must be pending before an inferior court-When the Sessions Judge initiates a proceeding by himself section 435 has no application. Haripada Biswas Vs. State (1982) 34 DLR (AD) 142.

 

—Concurrent powers of revision of District Magistrate, Sessions Judge and High Court-­Rejection of revision by lower revisional Courts-­High Court will not entertain revision unless new circumstances are pointed out which were not considered by the lower Courts or unless order of rejection was obviously perverse. 4 PLD (Bal) 37.

 

High Court Division may call for a record of a proceeding pending before lower Criminal Court for examining its correctness, etc. Tofazzal Hossain Shaikh Vs. Mir Md. Akand (1984) 36 DLR (AD)

42.

Trying Magistrate on the result of enquiry can alter the section of offence as given in the charge-sheet by the police. Kadam Ali Vs. The State, (1985) 37 DLR 300.

Ss. 435 and 436 : After examination of the record under section 435 the Sessions Judge may direct further enquiry into any complaint case which has been dismissed by the Magistrate under section 203 Cr.P.C. without going into the merit of the case.

 

On examining any record under section 435 or otherwise, the Sessions Judge may direct the District Magistrate or any other Magistrate subordinate to him to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make further enquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged. Nurul Islam Vs. The State (1985) 37DLR 111.

 

District Magistrate has power to set aside an order of discharge passed by a First Class Magistrate. The two decisions holding a contrary view, reported in 4 DLR 369, as well as the cases in Cal. 268 and 551 and 7 ALL. 134 are held not correctly decided. Aflzali and others Vs, State (1959) 11 DLR 501 = (1960) 10 PLR : 794=(1960) PLD (Dae) 197.

 

Sections 435 to 438 prescribe the method by which records of criminal cases come to the High Court Division to be dealt with in the manner provided in section 439.

 

Minority view : Ruhul Islam, J :— The present Code gives the High Court a much wider power by allowing it to act in its discretion. Sections 435 and 439 must be read together. Section 439 should be read along with and subject to the provisions of section 435. Sections 435 to 438 prescribe the method by which the records of any criminal case comes to the High Court and the power of the High Court to deal with the record is provided in section 439. In short, sections 435 to 438 provide the machinery and section 439 gives the power to dispose of the record called for by the High Court. Revisional jurisdiction of the High Court can not be invokedl unless the parity concerned beforehand moves the Sessions Judge or the District Magistrate (as the; case may be) for relief. In the matter of applications in criminal revision before the High Court it is the recognised rule of practice tJiat a previous application before the. lower Court-District Magistrate or Session Judge,, should be considered an essential step in the procedure, irrespective of whether such lower court has or has not power to grant the relief claimed and failure on the part of the applicant to submit his application to the lower Tribunal ha;? been considered as a bar to the application being normally entertained by the High Court. So a person invoking revisional jurisdiction of the High Court is bound, according to rules of that court, to apply first to the Sessions Jiudge or the District Magistrate. If either of the Lower Tribunals considers that a case for revision is made out he reports a case to the High Court under section 439 whereupon the High Court exercises its rcvitsional power under section 439. lit' the Sessions Juidge or the District Magistrate considers that the application is not fit for entertainment, he rejects it, leaving the aggrieved party to apply to the High Court direct. Shafiqur Rahman Vs. NJ. Chowdhury (1983) 35 DLR (AD) 127.

 

Ss. 435 and 438 : The provisions of isecs. 435 and 438 do not authorise an Additional 'Magistrate to set aside an order passed by a subordinate Court bu.t he is competent to make a reference to the High Court. Majidullah Vs. Ataur Rahman (1950) 2 DLR 136.

 

—Sessions Judge acting under secition 435 or 438, Cr.P.Code when no jurisdiction to direct the Siub-Divisional Magistrate to act in a certain manner. As far as the order of the learned Additional Sessions judge is concerned we are; of the opinion at the said order was without jurisdiction. The learned Additional Sessions Judge has no jurisdictions in exercise of his powers under section 435 or 438 oif the Code of Criminal Procedure to order that the petitioner be given a chance by the Suto-divisional Magistrate to make" payment of the balance amoun( of bid money. Abudl Hamid Vs. State (1981) 33 DLR 400.

Ss. 435 & 439 : The words "final and shall not"—"authority" in s. 37(4) of Industrial Relations Ordinance do not take away the High Court's jurisdiction exercisable under secs.435 and 439 Cr.P.C. A.KXhan Vs. Chairman, (1973) 25 DLR 192.

 

—High Court's superintending power-­embodied in sections 435 and 439, Cr.P.Code-Arrest under article 10 of P.O. 50 can only be when materials gathered during investigation throw reasonable suspicion, and not otherwise-Courts to see if provisions of the law (P.O. 50 of 1972) have been ;strictly followed and to step in whenever necessary, to prevent abuse of courts' process and failure; of justice. A.T.Mridha. Vs. The State (1973) 25 DLR 335.

 

—High Court's power of interference in exercise of its revisional jurisdiction in relation to cases before subordinate courts—In appropriate circumstances it can by resort to section 561A quash a proceeding.

-Section 435 and 439 Cr.P.C. are inconsistent with the provisions of the P.O.No.50 of 1972 A.TMridha Vs.. The State (1973) 25 DLR 335.

 

Ss.435, 439A and 561A. High Court can quash criminal proceeding pending before a Special couirt by. virtue of its power vested under section 561A. Mahmudul Haq Vs. Golam Moula, (1985) 37 DLR 290.

 

Ss. 435 and 439A. Sessions Judge not competent to quash proceeding before a subordinate court acting under sections 435 and 439A. Mahmudul Haq Vs. Golam Moula, (1985) 37 DLR 290.

 

-High Court's revisional jurisdiction as embodied in sections 435 and 439, Cr.P.Code--This is not affected by P.O.50 of 1972. A.TMridha Vs. The State (1973) 25 DLR 335.

 

S.435(1) ; All Magistrates, whether exercising original or appellate jurisdiction, are inferior to the Sessions Judge for the purpose of exercising power u/s.435 (1). a Magistrate in the course of trying a criminal case taking signatures on blank papers from one of the parties in the case for using them for purposes not authorised by law commits an act which empowers the Sessions Judge to call for the records of the case for the purpose referred to in section 435(1) Cr.P.Code.

 

Held : The allegations in the present case pertaining to a judicial proceeding before the petitioner who at the relevant time was acting as the Sub-Divisional Magistrate. Section 435 of the Code besides empowering the different hierarchy of courts to call for and examine the records of any proceedings before any inferior Court also empowers a superior court to call for and examine the record of such proceedings for the purpose of satisfying itself as to, the regularity of any proceedings of such inferior Court.

 

All Magistrates exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section (l)ofs.435andofs.437.

 

The proceedings in the present case arose out of a judicial proceeding pending before a court of Magistrate and the allegations received by the Sessions Judge against the Magistrate concerned was also directly related to that judicial proceeding. Consequently there is no reason why the Sessions Judge could not enquire into the allegations made against the petitioner when those allegations relate to proceedings pending before the petitioner who was exercising jurisdiction as a Magistrate and are relevant for the purpose of examining the question of regularity or otherwise of the proceedings. Haripada Biswas Vs. State(1980) 32 DLR 91.

 

S.436 : Sessions judge under section 436 can direct only further enquiry when a complaint is dismissed under section 203. -

The section does not confer any power on the Sessions Judge to direct that the accused persons should be summoned and therefore when he directs the Magistrate to summon the accused persons he acts without jurisdiction. Altaf Hossain Vs. State (1966) 18 DLR (WP) 39.

 

—Power   to   order   enquiry—governing

principles. With respect to orders by the revisional Court setting aside an order of discharge and remanding the case under section 436, the governing principles should be those applicable to the acceptance of appeal from the orders of acquittal. Moor Mohammad Vs. Crown (1953) 5 DLR (WPC)

 

—Where the Sessions Judge set aside the order of discharge passed by the trial Magistrate and remanded the case for further enquiry merely on the ground that he could not agree with the finding of facts arrived at by the trial Magistrate.

 

Held: The order setting aside the order of discharge was improper; sec.436 is not intended for a case like this. Noor Mohammad Vs. Crown (1953) 5 DLR (WPC) 5.                        

 

Ss. 436 and 435 : After examination of the record under section 435 the Sessions Judge may direct further enquiry into any complaint case which has been dismissed by the Magistrate under section 203 Cr.P.C. without going into the merit of the case. On examining any record under section 435 or otherwise, the Sessions Judge may direct the District Magistrate or any other Magistrate subordinate to him to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make further enquiry into any complaint which has been dismissed under section 203 or sub- section (3) of section 204, or into the case of any person accused of an offence who has been discharged. Nurul Islam Vs. The State 11985) 37 DLR 111.                 

 

—"Further enquiry" in section 436 Cr.P.C. includes also reconsideration of the existing evidence in relation to its effect on the complaint and may mean just a reconsideration of the evidence on record. Muhammad Miah Vs. The State, (1971) 23 DLR 121.

 

—"Further enquiry" —explained. Further enquiry under section 436 of the Cr.P.C. does not necessarily mean the taking of additional evidence but it may also mean reconsideration of the evidence already taken. The expression "Further enquiry" in its wider meaning includes reconsideration of the evidence already on record as well, and in some cases it means a new enquiry altogether by a different Magistrate. What step will be taken in a particular case will depend upon the circumstances of that case. In this case the Sessions Judge who had ordered further enquiry did not give any specific direction as to which of these courses the Magistrate would adopt. It was, therefore, open to the Magistrate to take any of the steps indicated above, as facts of the case demanded. Kanchan All Howlader Vs. Abdul Malek, (1973) 25 DLR 152.

 

—A party aggrieved by an order of discharge passed by Magistrate can move the Superior Court against such order in which ease this Superior Court may direct further enquiry but can not direct the Magistrate to take cognizance of the offence. Abdus Salam Master Vs. State. (1983) 35 DLR 140.

 

—Remedy against an order of dismissal. The only remedy which the informant had in the facts and circumstances of the case was to approach the Sessions Judge under section 436 Cr.P.C. for a direction to make further inquiry into the complaint which had been dismissed. It is now settled that a Magistrate discharging an accused on the basis of police report passes a judicial order and in such a case the power under section 436 can be invoked. Abdur Razzaque Vs. State (1983) 35 DLR 103.

 

Ss.436-437 : Fresh evidence can not be allowed. The provisions of sec. 436 or 437 do not vest jurisdiction in the Sessions Judge or the District Magistrate to call for fresh evidence in order to fill up deficiencies in the prosecution evidence already in the record. Altaf Hossain Vs. Stale (1966) 18DLR(WP)39.

 

Sections 436, 439 and 439A— Sessions Judge's power to direct further enquiry u/s. 436 Cr.P.C. on dismissal of complaint on an erroneous view of law. Bangladesh Vs. Yakub Sardar (1988) 40 DLR (AD) 246.

 

[S.437 was omitted by order XLIX of 1978 with effect from 1st June, 1979]

S. 437 : The expression improperly means that in the opinion of the Sessions Judge there were sufficient grounds before the Magistrate on which he ought to have made an order for committal. Mokshed All Dewan Vs. State (1956) 8 DLR 636

 

—On the charges framed and after evidence, the Magistrate acquitted all the accused. Against this order, the Sessions Judge was moved under sec. 437. He treated the order of the Magistrate acquitting the accused as an order of discharge and set aside the same.

 

Held : The accused having been acquitted after regular trial, the Sessions Judge's treating the acquittal order as an order of discharge is illegal. Sultan Khan Vs. Crown (1955) 7 DLR 128.

 

—Mere non-framing of charge, by a Magistrate holding preliminary enquiry, with regard to an offence which is exclusively triable by the Court of Sessions, does not amount to a discharge. Abdur Rahim Vs. State (1966) 18 DLR 337.

 

—Discharge under section 437 does not include discharge arising merely from framing of a charge. The powers of the Sessions Judge under section 437 ordering the commitment of a person for trial whom the Sessions Judge considers to have been improperly discharged should come into play only when the discharge by the Magistrate is express in its terms. There does not seem to be any scope of "discharge by implication" in the main part of the section. Abdur Rahim Vs. State (1966) 18 DLR 337.

 

-—When a man is accused of two distinct offences and the Magistrate frames a charge for one of those offences without passing an express order of discharge with regard to the other, even in such a case there is no implied discharge of the former offence. Abdur Rahman Vs. Stale (1966) 18 DLR 337.

 

—Discharge must be in express words used."May cause him to be arrested" what it means-The expression "may cause him to be 5 arrested" means that the power of arrest and order of commitment comes into play only after the accused person is out of Court having been improperly discharged by the Magistrate already of the whole case. Abdur Rahim Vs. State (1966) 18 DLR 337.

 

—Sessions Judge's jurisdiction to set-aside the Magistrate's order of discharge,

The Sessions Judge's jurisdiction to set aside the Magistrate's order of discharge can be exercised when the order of discharge is illegal or improper—must record reasons for setting aside the order. Mokshed Ali Dewan Vs. Stale (1956) 8 DLR 636.

 

—Discharge must be in express words used, Abdur Rahim Vs. Stale (1966) 18 DLR 337.

 

—Under section 437 a discharge must be a discharge recorded in express terms, The discharge referred to in section 437 is a discharge which has.been recorded in express terms, In the instant case, since the petitioners were not discharged in express terms, but were charged under section 380 P.P.C., the jurisdiction of the Sessions Judge to exercise powers under section 437 did not arise. Taker Ahmed Vs. Hajee Ershadullah, (1970) 22 DLR 223.

—Mere non-framing of charge by the Magistrate holding inquiry, with regard to an offence exclusively triable by the Court of Sessions, does not amount to discharge within the meaning of section 437 of the Code. Taker Ahmed Vs. Hajee Ershadullah, (1970) 22 DLR 223.

 

—Orders of commitment by Magistrates under Chap. XVIII or of Sessions Judges under section 437 to contain materials showing that they have applied their minds to the facts of the case. It is incumbent on a Court of Sessions to refer in its order to the evidence which induced it to hold that the case was triable exclusively by the Court of Sessions, with a view to enabling the High Court to be satisfied that the order of commitment was passed on a proper consideration of the materials on record. Md. Yakub Ali Vs. The State, (1968) 20 DLR 881.

 

—Discharge contemplated under section 437 need not necessarily be a discharge passed only under section 209 of the Code. Taher Ahmed Vs. Hajee Ershadullah, (1970) 22 DLR 223.

 

—Court of Magistrate discharged the accused person facing trial under sec. 302 of the Penal Code, Sessions Judge being moved set aside the order of discharge and directed the Magistrate to commit the accused to Sessions Court to stand his trial of the offence charged. Held : Nothing wrong with the course adopted. Bahar Ali Sardar Vs. State (1977) 29 DLR 70.

 

—High Court Division not powerless to correct any error and eliminate injustices. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD)

127.

—Since the prosecution did not move to set aside order of discharge as against the accused the Sessions Judge's order on 1.8.79 was illegal. The police after investigation submitted charge-sheet against several persons including the present petitioner Mollah under sections 148, 326 and 307 of the Penal Code. The- committing Magistrate discharged the petitioner u/s. 209 Cr.P.Code and committed other accused to the Court of Sessions on 4.10.78. On 1.8.79 on an application for issue of summons upon the petitioner Mollah, the Sessions Judge on 1.8.79 issued summons upon Mollah for his appearance in Court.

Against the aforesaid order of the Sessions Judge the High Court Division was moved and rule was  issued to show cause why the order of the Sessions Judge passed on 1.8.79 should not be set aside. Fazlul Huq Haider alias Mollah Vs. The State(1983)35DLRl.

 

S.437(b) : Magistrate does not record any reason or passes any order of discharge. Sessions Judge in such cases can have recourse to proviso (b) of the section. If the Magistrate does not record any reason and does not pass an express order of discharge in so many words the Sessions Judge is not competent to makQ any order under the main section. In such case the only course is provided by proviso (b), viz, that of inquiry into offences which are found to have been committed on the evidence on record. Abditr Rahim Vs. State (1966) 18 DLR 337.

 

S. 438^-Reference to the High Court-­On the wording of rule 140 of the General and Circular Orders of the High Court, it does not appear that the explanation by the trying Magistrate must be with regard to the points on which a reference is actually made. State Vs. Fazar Ali (1957) 9 DLR 77(78).

 

\ Ss. 438 and 435 : The provisions of sees. 435 and 438 do not authorise an Additional Magistrate to set aside an order passed by a subordinate Court but he is competent to make a reference to the High Court. Majidullah Vs. Ataur Rahman (1950) 2 DLR 136.

 

—Reference under the section can be made by the Judge suo motu. Stale Vs. Mantoo Chandra (1957) 9 DLR 153.

—Omission of the Trial Magistrate to consider evidence of important witeness involves a question of Law. A letter of reference u/s. 438, in view of illegalities, can not be termed as incompetent. A Mil Vs. A. Sabur (1953) 5 DLR 169.

 

—The proper course for making a reference u/s. 438 is first to dispose of the appeal in accordance with the provisions of s. 423 of the Code. Crown Vs. Matilal Sen (1953) 5 DLR 67

 

—The High Court, suo motu, set aside the conviction and sentence as against another person convicted by the Magistrate on the ground of the conviction being illegal though he did not move the High Court against his conviction. Crown Vs. Pirdhan Ratanmall(1950) 2 DLR 304.

 

— Reference is to be made on law and not on facts-Reference under section 438 Cr.P.Code on facts alone not competent to invoke the revisional jurisdiction under section 439 of the Code. The State Vs. Habibur Rahman Khan \Y»70) 22 DLR 511.

 

—Reference of a case triable under P.O. 50/72 incompetent. The Sessions Judge even in his capacity as Ex-Officio Special Tribunal under the Order is not competent to make the reference under section 438 of the Cr.P.Code in a case triable under the P.O. 50 of 1972. Anwarul Amin Chowdhury Vs. The State (1976) 28 DLR. 111.

 

S. 438 read with S.145 : The Sessions Judge should abide by the decision, on the question of fact of the trial Magistrate. In making a reference under section 438 Criminal Procedure Code a court of sessions should not make an independent assessment on a question of fact. Mrs. Mas-wood Vs. Md Meah (1974) 26 DLR 170.                            

 

Ss. 438 & 439 : Revision petition under section 439 direct to the High Court without first moving the Sessions Judge (or the District Magistrate) under section 438 for reference to the High Court is not entertainable, except in exceptional circumstances. When such a revision petition direct to the High Court is entertained and the record called for, the technical objection the Sessions Judge was not moved will not be given effect to. Shah Jillur Rahman Mutwalti Vs. State, (1958) 10 DLR 541.

 

S. 438(2) : Additional Sessions Judge's power to make a reference, Additional Sessions Judge has no power to make a reference under Chapter 32 of the Cr.P;Code, except under sec. 438, clause (2) which provides that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge in respect of any case which is transferred to him by or under any general or special order of the Sessions Judge. Additional Sessions Judge has no power to make reference in respect of a person who was not before him. Crown Vs  Motilal Sen(1953) 5 DLR 66.

1866

Constitution of Pakistan, 1962 -25

Citation: (1959) 11 DLR 359 : 1958 VIII PLR 742 :1960 PLD (Dacca) 19, (1953) 5 DLR (FC) 185 (191), (1955) 7 DLR FC 78 (82), (1957) 9 DLR 586,(1964) 16 DLR (SC) 605, (1965) 17 DLR (SC) 33, (1958) 10 DLR 205, 2 PCR 173, (1958) 10 DLR 506, (1963) 15 DLR (SC) 150, (

Subject: Constitution of Pakistan

Delivery Date: 2018-09-16

SECTION  439 Synopsis.

1. Acquittal.

2. Competency of revision. . 3. Con version of appeal

4. Discretion.

5. Enhancement of sentence.

6. Finding of facts.

7. Grounds for.

8. Interference.

9.  Limitation.

10. Pending proceedings

11. Power of High Court.

12. Quashing proceedings.

13. Retrial.

14. Scope and applicability.

1.  Acquittal

 

S. 439—Acquittal, setting aside of-When justified. It is an established principle of law that power of setting aside an acquittal order by the High Court should be exercised only in exceptional cases where the interest of justice requires such interference for the purpose of correction of a manifest illegality.

 

Where an accused has been erroneously acquitted on a charge of fabricating false evidence on the ground that there could not be any conviction on "expectant" use of any alleged fabricated .document .in a judicial proceeding in future and that punishment would only be if it is found that the accused used any fabricated document in evidence in any stage of a judicial proceeding.

 

Held : There has been a manifest illegality in this case, and the High Court should interfere with the order of acquittal for the prevention of gross miscarriage of justice, and in the interest of public peace and order. Jnanendra Nath Biswas Vs. Mokbul Hossain Sikder (1959) 11 DLR 359 : 1958 VIII PLR 742 :1960 PLD (Dacca) 19.

 

-Order   of   acquitta;   into   conviction Under clause (4) of section 439, the High Court cannot convert a finding of acquittal into one of conviction, but it can under sec. 423 order the accused to be Ktiied.KhairdiKhan Vs. Crown (1953) 5 DLR (FC) 185 (191).

 

—Reference to the statutory provisions relating to powers exercisable by the Court in appeal and in revision will show that with two exceptions, powers exercisable in the two modes are in all respects similar. The exceptions are that in an appeal a sentence may not be enhanced whereas this may be done in revision and secondly, that in revision an acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. No restriction is placed upon the High Court's power in either case to examine all the facts and circumstances as well as the entire evidence. Crown Vs. Sultan, Mahmood (1955) 7 DLR FC 78 (82)

 

—Acquittal order by the Appejlate Court-High Court has power to set aside an order of acquittal even upon question of fact, if there has been a failure of Justice. Naleni Kanta Ghosh Vs. Afizuddin (1957) 9 DLR 586.

 

2. Competency  of revision

—Revision against the order of acquittal—High Court's duty to examine the facts and circumstances in order to see that justice is done. In revision under section 439, Cr.P.C. the High Court may not reverse an acquittal, but it may yet interfere with it in another way, so as to ensure that justice is done. The line of approach in such a case is to see that the case in its details and the supporting evidence, had been fairly and fully appreciated by the court below, and its conclusions were reached in accordance with the basic principles governing the formation of a verdict adverse to an accused person. Abdur Rashid Vs. Chandu Master (1964) 16 DLR (SC) 605.

 

—In revision the case was remanded by the High Court to the lower Court for rehearing. Subsequently one judge, acting in administrative capacity, cancelled the remand order and withdrew the case to the High Court and directed it to be heard by a Judge who was a party to' the earlier remand order—Procedure adopted disapproved, though the order as passed by the High Court in the interest of justice in this particular case was upheld. Riaz Haider Zaidi Vs. Stale (1965) 17 DLR (SC) 33.

 

—A Magistrate's order under section 433 of the Bengal Municipal Act is open to the rcvisional jurisdiction of the High Court. A Kader Vs. Chairman DAC. (1958) 10 DLR 205.

—Two persons were convicted by the trial Court. One of them appealed to the Sessions Judge and was acquitted. The second convict then preferred a revision in the High Court.

 

Held : A revision, in view of section 439(5), cannot be entertained in an appealable case, at the instance of the party who could have appealed but has not done so. Muhammad Din Vs. Crown 2 PCR 173.

 

—Obiter : Sub-section (5) of s. 439 applies only where an appeal lies "under the Code", but where an appeal lies under same other provisions of law, a revision may lie to the High Court* Muhammad Din Vs. Crown 2 PCR 173.

 

—The High Court exercises revisional jurisdiction under sections 435, 439 Cr.P.Code, over the proceedings or order passed*" by any "inferior Criminal Court."

 

An order passed by the District Magistrate purporting to acfunder section 167 (81) read with section 8 of the Sea Customs Act is not an order of an "inferior Criminal Court" and, therefore, there cannot be any interference, under the provisions of section 439 Cr.P.Code.

 

Any person affected by such an order, if so advised, could have moved the High Court for the issue of an appropriate writ to set aside the impugned order. Basanta Kumar Dowe Vs. State (1958) 10 DLR 506.

 

—High Court's wide power under its revisional jurisdiction, enumerated. In the exercise of its revisional jurisdiction the High Court can even, in appropriate, cases disturb findings of facts, as for example, where the Subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored. Md. Samiullah Khan Vs. State (1963) 15 DLR (SC) 150.

 

—The appellate Court's omission to pass necessary orders regarding restoration of the disputed property under section 522 Cr.P.C. is not appealable but as against this omission a revision under section 439, would lie to the High Court and the High Court in exercise of its revisional jurisdiction can set aside the order of the trial Magistrate passed under section 522 of the Code. Basiruddin Mia Vs. Modhu Lai Somani (1961) 13 DLR 30 :1961 PLD (Dae) 648.

 

—High Court's revisional jurisdiction will not be exercised against the judgment of Appellate Court if the latter had done substantial justice even though it had no jurisdiction to entertain the appeal. Badiuzzaman Vs. Aminullah (1961) 13 DLR 241; 1962 PLD (Dae) 81.

 

—Revision—complainant being forcibly ousted from his Godighar—Filing ."a case under sections 448 and 452 P.P.C.—During proceeding, Magistrate making an order of restoration of possession—Order illegal—Order carried out thus maintaining status quo Order, although illegal, cannot be set aside—No injustice caused-Revision powers only exercisable for correcting injustice and not mere illegality. Abdus Samad Vs. Haji Mominuddin Khan (1963) 15 DLR 498.

 

Whether a revision lies to the High Court, even in respect of order from which no appeal has been provided. It may be legitimately argued that the High Court is competent to exercise its revisional jurisdiction under section 439 of the Code even in respect of order from which no appeal would lie under section 408 of the Code. Mrs. Nur Jehan Begum Vs. Authorised Officer, Ctg. (1965) 17 DLR (Doc) 393.

 

No petition for revision will be entertained if another remedy is open to the petitioner. 4 PLD (Bal)22.

 

—Some statements were incorporated in the petition of revision which was moved on behalf of the accused before the High Court. These statements did not form part of the record Of the case on which was based the conviction of the accused by the trial Court. The learned Judges of the High Court, in arriving at their conclusion that the accused was guilty of the charge he was called upon to answer, accepted and relied on those statements made in the petition.

 

Held : The admission contained in the petition for revision in the High Court cannot be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the trial Court. If any other material is sought to be used against the accused person, such material should be placed on the record after complying with the provision of section 428 of the Code. Fazlul Qader Chowdhury Vs. Crown (1952) 4 DLR 104 (105)(112)

 

—(5): Appeal filed beyond the period of limitation can be treated as application for revision. The power of the High Court under sections 435 and 439 Cr.P.C. are very wide and if any matter comes to their notice in which some illegality has been committed, the High Court has ample power to interfere in spite of the fact that an appeal lies and has not been filed within the time of limitation. In appropriate case, the High Court is competent to treat an appeal beyond limitation to an application for revision.

 

The prohibition against revision under section 439(5) of the Code is limited only to those cases in which the High Court is asked to interfere at the instance of the party who could have appealed but has not done so. Sarwar Vs. State (1959) 11 DLR {WP): 62 1959 PLD (Lah) 50.

 

—Order of a Magistrate on a police report cancelling a case against a person before he takes cognizance of the case is not a judicial order and as such not open to revision. Md. Farid Vs. State, (1971) 23 DLR (Lah.) 6.

 

—Reference is to be made on law and not on facts-Reference u/s .438 Cr.P.Code on facts alone not competent to invoke the revisional jurisdiction of the High Court. State Vs. Habibur Rahman Khan, (1970) 22 DLR 511.

 

—Revisional powers of the Sessions Judge and the High Court u/s 435, Cr.P.Code are concurrent. High Court, however, would be reluctant to enlerlain revision where a party fails to approach the lower Court in the first instance-In exceptional cases High Court may entertain revision directly. Md. Ehsan Vs. State, (1968) 20 DLR (WP) 133.

 

—It is to be noted that the revisional jurisdiction under section 439 Cr.P.C. is not to be lightly exercised and cannot be invoked as of right. Such power is to be exercised sparingly only' in proper cases. Abul Kashem Showdagar Vs. Abdur Razzaque(1984)36DLR63.

 

—District Magistrate or Sessions Judge, shduld be considered an essential step in the procedure, irrespective of whether such lower Court has or has not power to grant the relief claimed, and failure on the part of the applicant to submit his application to the lower Tribunal has been considered as a bar to the application being normally entertained by the High Court. So a person invoking revisional jurisdiction of the High Court is bound, according to rules of that Court to apply first to the Sessions Judge or the District Magistrate. If either of the lower Tribunals considers that a case for revision is made out he reports a case to the High Court under section 439 whereupon the High Court exercises its revisional power under section 439. If the Sessions Judge or the District Magistrate considers that the application is not fit for entertainment, he rejects it', leaving the aggrieved party to apply to the High Court direct. Shafiqur Rajiman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Object of revisional jurisdiction is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction.

"The object of revisional jurisdiction is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment which has resulted in some injury to public interest or undue hardship to individuals, This is a part of the observations made by Law Reform Commission set up by the Government of Pakistan in 1967. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

3. Conversion of appeal

—Trial Court's judgment acquitting the accused from charge under section 302 P.P.C., High Court not competent in its revisional jurisdiction to convert the acquittal under section 302 P.P.C. into conviction. In such a case the High Court can reverse the conviction recorded under section 304 Part II and order for retrial. But in the present case as the High Court called upon the appellant to show cause in suo motu revision against enhancement of sentence and not to show cause why he should be not re-trie ,d there is no alternative but to uphold the conviction and sentence passed under section 304 Part II P.P.C. Khauwada Vs. State (1976) 28 DLR (WP) 15.

 

—Appeal, memorandum of--can be treated by the High Court in a fit case as a revision petition. Rustam Ali Vs. State (1957) 9 DLR 424.

 

4.   Discretion

—Federal-Court, when will interfere-High Court's order in revision passed under section 439, when the discretion possessed by the High Court under that section has not been judicially exercised Begum N. J. Khan Vs. Waheeduzzaman (1956) 8 DLR (FC) 122.

 

—High Court has got the discretion to reverse a finding of acquittal and order retrial. Janab Gul Vs. Aslam Khan, (1966) 18 DLR (WP) 45.

 

5.  Enhancement of Sentence

—High Court has no power in appeal to enhance sentence but, when hearing an appeal, can take proceedings under section 439 which invest it with the power of enhancing the sentence. Muhammad Aslam Vs. State (1959) 11 DLR (SC) 250 : (1959) PLD (SC) 119.

 

—Sentences are enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that the High Court, had it been trying the case, might have imposed a higher sentence is not sufficient reason for enhancement. Crown Vs. Ahmad Khan (1955) 7 DLR (WPC) 64

 

—An Appellate Court could not convert a .conviction for a lesser offence into one for a higher offence ki appeal and then enhance the sentence under its revisional powers without there being an appeal against the acquittal by the Crown under section 417, Cr.P.C. Boga Vs. Crown (1954) 6 DLR (WPC) 130.

 

—The High Court will not interfere so as to , enhance the sentence unless the sentence is grossly and manifestly inadequate and clearly wrong jn the circumstance of the case. (7959; PW '(Lah) 517,

 

—Sub-section (6) of section 439 gives a fresh right to the accused to question his conviction even after his petition has been dismissed under section 439(1) after full hearing. (7959; PLD (Lah) 479

 

—Enhancement of a sentence is not justified unless it is manifestly or grossly inadequate or leads to miscarriage pf justice or the sentence is perverse, (1950)PLD(Sind)77.

 

—Person showing cause against enhancement of sentence may show cause against conviction even where he had pleaded guilty. 7 PLD Sind)21,

 

—Protracted trial may be ground against enhancement. The accused had remained in custody during trial for more then 3 years. The High Court discharged notice for enhancement. Golam Ahmad Khan Vs. State (1958) 10 DLR (WP) 55.

 

—Revision petition under section 439 direct to the High Court without first moving .the Session Judge (or the District Magistrate) under section 438 for reference to the High Court is not entertainable, except in exceptional circumstances. When, such a revision petition direct to the High Court is not entertained and the record called for, the technical objection that the Sessions Judge was not moved will not be given effect to. Shah Jillur Rahman Mutwalli Vs. State (1958) 10 DLR 441.

 

—A reference under section 438 will, in the event of acceptance, be followed by an order under sec. 439. If an order of enhancement or substitution I of sentence is to be passed, in that event the case is at large before the revisional Court and sub-section (6) of sec. 439 of the Cr.P.C. gives opportunity to the accused to show cause against his conviction. (1955) 7 DLR (Bal) 10

 

—The High Court will not interfere so as to enhance the sentence unless the sentence is grossly. and manifestly inadequate and clearly wrong in the circumstances of the case. Recommendations for enhancement under sec. 438 should not be lightly made when made, and should be supported by reasons. 8 PLD (Lah) 517.

 

—Six accused were convicted under section 148, P.P.C., and on the charge of murder under sections 302/149, they were acquitted by the Sessions Judge. There was an appeal to the High Court by the convicts. While disposing of the appeal of the six convicts all of whom had been convicted under section 148, the finding of acquittal recorded by the Sessions Judge in their favour for an offence under sections 302/149 was altered under section 423 of the Cr.P.C. and they were held guilty of murder. After altering the finding, the High Court, acting on the revision side under section 439 enhanced the sentence to transportation for life.

 

Held : It is illegal to alter the finding in exercise of the powers under section 423 of the Code and disregard the qualifications attached to the words, "alter the findings", and then to resort to sub-section (6) of section 439 to enhance a sentence in such a manner as to convict a person of an offence of which he has been acquitted. The provisions of sections 423 and 439 of the Code cannot be availed of in such a manner as to reverse the finding of acquittal under .the cloak of merely altering it. Shera Vs. Crown (1954) 6 DLR (FC) 80 (85, bottom, and

 

—It is not open that the High Court in an appeal from a conviction by a convict who has been charged under sec. 302 but convicted under sec. 334, II P.P.C., to alter the conviction from the latter section to the former and then by virtue of section 439, to enhance the sentence. High Court has no power to alter a finding of acquittal into one of conviction under section 423(b). Crown Vs. Mouj Ali (1955) 7DLR(WPC)

 

—Accused charged and convicted under sections 376/511, P.P.C.—Finding may be altered in appeal to one of conviction under section 376, P.P.C., and sentence may be enhanced under section 439. Fazal • Karim Vs. Crown (1955) 7 DLR (WPC) 110.

 

—Three convicts were tried for murder by the Additional Sessions Judge, Two were sentenced to death and the 3rd to transportation for life. This accused had stood guard on the victim in order to prevent his escape and had later joined with the other 2 accused in pursuing him to the place where he was killed.

There was an appeal to the High Court against the conviction and a revision petition by a private person to enhance the life sentence to death. The High Court dismissed the appeal and, accepting the revision petition, sentenced the convict with life-sentence to death.

 

Held : (Per majority, Abdul Rashid, C.J., contra)—The action of the High Court in enhancing the sentence in the circumstances of the case was justified. Talib Vs. Crown (1955) 7 DLR (FC) 92.

 

—It is no doubt true that it has been the policy of the High Courts to discourage applications by a private person to enhance the sentence; but there can be no absolute rule that action should not be taken on a private application for enhancement of sentence. Talib Vs. Crown (1955) 7 DLR (FC) 92.

 

' —Ordinarily the Federal Court is reluctant to interfere on a question of sentence. If, however, the enhancement of sentences by the High Court or the imposition of sentences in cases tried by the High Court raises a question of principle, the Federal Court would not hesitate to lay down correct principles for the guidance of the High Courts and the subordinate Courts. 1"alib Vs. Crown (1955) 7 DLR(FC)92.

 

Akram, J.—The question of what should be the proper sentence is not for the Federal Court to determine in the exercise of its prerogative powers and should be left to the discretion of the High Court as the final Court of facts. Talib Vs. Crown (1955) 7 DLR (FC) 92.

 

Shahabuddin, J. :—As long as the High Court exercises its discretion in enhancing the sentence judicially on recognised principles and not arbitrarily and no miscarriage of justice has resulted there can be no reason for interfering with its discretion. Talib Vs. Crown (1955) 7 DLR (FC) 92.

 

Cornelius, J :— The power of enhancement of sentence should be exercised sparingly, and only to correct the serious miscarriage of justice which results where the punishment is inadequate to the point of beinj wholly incommensurate with the crime found to have been committed. Talib Vs. Crown (1955) 7 DLR (FC) 92.

 

Abdul Rashid, CJ. (contra)—It is for the trial Court to take all the circumstances into consideration and to determine whether in respect of a particular convict the sentence of transportation for life would not be more suitable than the sentence of death. So long as the trial Court performs its duty in this respect in accordance with law, the High Court should enhance the sentence. If the reasons given by the Sessions Judge inflicting the lesser punishment'are perverse, or foolish, or manifestly wrong, the High Court could hold that the discretion vested in the learned Sessions Judge had been exercised in an arbitrary, injudicious or capricious manner. In such circumstances, the High Court would be justified in enhancing the sentence. Where the reasons given by the Sessions Judge are such that they might appear reasonable to some Judges and unreasonable to others, the High Court is not entitled to enhance the sentence simply because it would have inflicted a higher sentence had it been trying the case itself. Talib Vs. Crown (1955) 7 DLR (FC) 92 (95)

 

6. Finding of facts

—Concurrent findings of fact by lower Court—High Court will be slow to disturb. Md. Ghous Vs. Crown 2 PCR 125.

 

High Court not prevented to examine the evidence to arrive at its own conclusion. The rule about concurrent findings of two Courts on a question of fact does not apply to criminal cases and the learned judges of the High Court are competent to examine in a particular case the whole evidence to come to their own finding on this point. Mrs.  CM.  Samul Vs. Mr. C.M.I Samual, (1967) 19 DLR (SCJ428.

 

7.   Grounds for

—Whether new grounds other than those on which a revision was admitted can be urged. It appears to be an established practice of the High Court of Dacca not to allow J any grounds to be urged in support of a revision  petition except the ground or grounds on the basis of which a rule had been issued in the first instance, It cannot be denied that there is considerable force in the contention that having regard to the very wide powers which the High Court may exercise under section 439, read with section 423, after perusal of the record and after hearing the petitioners, the practice of confining High Court's attention at this stage of the case to such matters as attracted the attention of the Bench which admitted the petition, and which had nothing but the judgments of the Courts below upon which to go, entails a danger that-points may be overlooked which very seriously affect the justice of the case. A Sailer Vs. Cram (1953) 5 DLR (FC) 14 (-32).

 

8.   Interference

—Federal Court, when will interfere- Federal Court would interfere with High Court's order in revision passed under section 439, when the discretion possessed by the High Court under that section has not been judicially exercised. (1956) 8 DLR [FC] 122.

 

—No interference by the High Court in revision when there is no substantial illegality or irregularity. State Vs. FazarAli (1957) 9 DLR 77.

 

—The High Court has no power to interfere, under sections 425 and 439 with an order passed by the S.D.O under section 71 or 93 of the Bengal Village Self-Govt. Act. Rajab All Vs. Hussain AH (1949) I DLR 140.

 

—The revisional jurisdiction conferred on the High Court under section 439 is not to be lightly exercised when it is inv.oked by a private complainant against an order of acquittal against which the government has a right of appeal un^er section 417 of the Criminal Procedure Code. It could be exercised only in exceptional cases when the interest of public justice requires interference for the prevention of gross miscarriage of justice. The jurisdiction is not ordinarily invoked or used merely because the lower Court had taken a wrong view of the law or misappreciated the evidence on record. N. Islam Vs. Saifuddin (1955) 7 DLR 123.

 

—High Court's power of interference even when not moved by a party to the proceeding. Even when the accused-has not filed any appeal or revision against the order of conviction, the High Court may interfere on the application of a third party. It is, therefore not a question of the right of the parties, nor the locus standi of the petitioner. Mam Mia Vs. Akhlakur Rahman (1976) 28 DLR 74.

 

—In a case of revision under section 439 of the Code of Criminal Procedure findings of fact are not interfered with on the ground of misappreciation of evidence except when such findings are perverse or contrary to the evidence on record. Abdul Halim Vs. Appellate Tribunal (1979) 31 DLR 364.

 

9.   Limitation

—Limitation     for     filing     revision

petition. While no limitation is laid down for the presentation of revision petitions it has been a general rule of practice that such petitions should be submitted to the revisional Court within 60 days of the passing of the order of the lower Court unless toe are unusual or exceptional circumstances. Md'. Shous Vs. Crown 2 PCR 125.

 

 

 

10. Pending Proceedings

—The High Court, suo motu, set aside the conviction and sentence as against another person convicted by the magistrate on the ground of the conviction being illegal though he did not move the High Court against his conviction. Crown Vs. Pirdhan Rautamull (1950) 2 DLR 340.

 

11. Power of High Court

—Conviction of an accused who had not appealed can be set aside by the High Court under section 439, while disposing of appeals of other co-, accused. IPLD (Lah.) 179.

 

—The special and mandatory provision of section 215, Cr.P.C. controls the general powers of the High Court under section 439.

 

According to section 215, therefore, a commitment once made can be set aside only by the High Court and that only on a point of law. (1956) 8 DLR (WPC Lah.) 21.

 

—High Court in proper cases can interfere with question of fact wrongly decided by the trial Court. Under section 439 the High Court in exercise of its revisional jurisdiction can disturb the findings of facts; where the subordinate Courts have wrongly applied the law and procedure of not applying the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether. Normally though a revisional Court should not take upon itself the task of weighing the evidence afresh, but its power is not confined to question of law alone and in a fit case the High Court can also deal with question of facts where the findings of the Courts below are unreasonable, perverse and absolutely against the weight of evidence. Jamshed Bakth Vs. Ameenur Rashid Chowdhury (1968) 20 DLR 56.

 

—High Court's power under the section is very wide. It is true that under section 436 of the Code of Criminal Procedure the Sessions Judge .has concurrent power with the High Court to direct further enquiry but the power of the High Court under section 439 is very wide and it can revise the proceedings or orders passed by any inferior Criminal Court in exercise of its revisional jurisdiction in a proper case. Dr. Jamshed Bakth Vs. Atneenur Rashid Chowdhury, (1968) 20 DLR 56.

 

—Powers exercisable by the High Court in appeal and in revision with two exceptions, are similar in all respects.

 

The exceptions are that in an appeal a sentence may not be enhanced whereas this may be done in revision and secondly, that in revision an acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court. Md. Shamsul Hoque Vs. The State, (1968) 20 DLR 540.

 

The Court can under section 439 Cr.P.C. suo motu take cognizance of the case of an accused who has not appealed and set aside his sentence, if found illegal. Mamud all Vs. State, (1985) 37 DLR 261.

 

High Court Division may call for records suo molu and can interfere in case of wrong finding of facts in a case of acquittal even where the State has not preferred appeal against acquittal. Tofazzal Hossain Shaikh Vs. Md. Mir Akand (1984) 36 DLR (AD) 42.

 

—High Court suo motu can set aside a conviction, even when the accused did not prefer an appeal. Abdul Hafez Sardar Vs. The State (1976) 28 DLR 253.

 

—Jail appeal filed beyond time-High Court can suo motu condone the delay and admit the appeal to prevent miscarriage of justice acting under sec. 439. Rehaman Gul Vs. State, (1971) 23 DLR (Pesh.) 12.

 

—Leave o'rder was granted to examine the powers u/s 439 Cr.P.C. as interpreted by High Court Division. Kashem All Vs. The State (1988) 40 DLR (AD) 294.

 

—High Court Division made three propositions in defining the area for exercise of its power and

authority. Kashem Ali Vs. The State (1988) 40 j DLR (AD) 294.

:

Ss. 439 & 435 : The words "final and shall | not"—"authority" in s. 37(4) of Industrial Relations Ordinance do not take away the High Court's jurisdiction exercisable under secs.435 and 435 Cr.P.C. A.K.Khan Vs. Chairman, (1973) 25 DLR 192.

 

Administration of Criminal Justice with the | change of time and circumstances attending the sameHigh Court Division to be a little more scrutinising even in a case of acquittal—whether misappreciation of evidence is never a sufficient ground for interfering with an acquittal. Kashem All Vs. The State (1988) 40 DLR (AD) 294.

 

Ss. 439 & 438 :  Revision petition under I section 439 direct to the High Court without first j moving  the  Sessions Judge (or the District | Magistrate) under section 438 for reference to the I High  Court  is  not  entertainable,  except in j exceptional circumstances. When such a revision petition direct to the High Court is entertained and the record called for, the technical objection the Sessions Judge was not moved will not be given effect to. Shah Jillur Rahman Mutwalli Vs. Stats, (1958) 10 DLR 541.

 

12.  Quashing  proceedings

High Court will quash proceedings when the order in respect of which an offence is said to have been committed is vague and unintelligible. Shtth Zillur Rahman Mutwalli Vs. State (1958) 10 DLR 547.

 

—Quashing of proceeding. — It is generally I not the practice of this High Court to quash charges | framed in the trial Court ; but it is now well established that if the case is of an exceptional nature, the High Court has the power to do so in exercise of its revisional jurisdiction. Kalu Mia Vs. Janab Ali (1957) 9 DLR 252.

 

—As to when a case may be considered to be an exceptional case, no hard and fast rule can be laid down; but it is clear from, the authorities that when on the face of the proceedings it appears that no offence has been committed, the High Courts have treated that as an exceptional case. Kalu Mia Vs. Jonah All (1957) 9 DLR 252.

 

Sessions Judge not competent to quash proceeding before a subordinate court acting under sections 435 and 439A. Mahmudul Haq Vs. Golam Moula (1985) 37 DLR 290.

 

—An application for quashing the proceeding pending before the lower Court would not lie when commission of some offence is disclosed in the FIR. Sblema Khatoon & ors. Vs. The State (1986)

% DLR 348.

 

When a prima facie case has been disclosed and cognisance taken, this Court would not embark upon an enquiry whether the allegation is reliable or not. Salema Khatoon & ors. Vs. The State (1986) 38 DLR 348.

 

—Quashment of criminal proceedings-Proceedings cannot be quashed on bare ground that complaint does not reveal commission of any offence. Muhammad Ehsan Vs. The State, (1968) 20 DLR (WP) 133.

13.    Retrial

—The discretion to make an order of retrial, provided it does not offend against sub-section (4) of , section 439, is legally unlimited. Now if a High Court can order a retrial because the acquitting Court li^s taken a wrong view of the law there can be no justification for laying down the broad rule that where the view of the trial Court on the facts is wrong, the High Court cannot order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in sub-section (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. Anwar Vs. Crown (1955) 7 DLR (FC) 211 (232-234).

 

—It will be open for the High Court to consider whether in spite of the misdirection, any finding other than one of acquittal would have been come to in the circumstances of the particular case and the High Court would not order a re-trial unless it came clearly to the conclusion that but for the misdirection the Court might have or should have come to a different finding as to what it actually did. Khairdi Khan Vs. Crown (1953) 5 DLR (FC) 185 (192).

 

—(6) Under clause (4) of sec. 439, the High Court cannot convert a finding of accquttal into one of conviction, but it can, under the powers conferred under section 423, order the accused to be retried by a Court of competent jurisdiction subordinate to such Appellate Court. Sarwar Vs. State (1959) 11 DLR (WP) 62 :1959 PLD (Lah.) 50.

 

—While dealing with an appeal under section 423, the High Court suo motu issued Rule upon person who had been acquitted by the trial Court to show cause why the order of their acquittal should not be set aside or such other or further orders passed as might seem to the Court fit and proper. The High Court has the power to set aside the Order of acquittal and to order a re-trial. The decision of the Federal Court in the case of Shera and 6 others Vs. The Crown (6 DLR FC 80) lends no support to the proposition that the High Court has no such power. Profulla Das Vs. Crown (1954) 6 DLR 439.

 

14.  Scope  and  applicability

—Role of the High Court under section 439 very wide and its exercise must always be to secure justice in a particular case on an over-all consideration of the whole case both in law as well as on facts—In cases of motion against acquittal at the instance of private party the governing consideration must always be whether justice has been done or not. Feroze Khan Vs. Captain Ghulam Nabi Khan (1966) 18 DLR (SC) 289.

 

—In appropriate cases, even findings of fact could be disturbed in revision. Feroze Khan Vs. Captain Ghulam Nabi Khan (1966) 18 DLR (SC) 289.

 

—Where the subordinate Court had wrongly allocated the onus of pr90f, in not applying the correct principles relating to the appraisal of evidence, or some important piece pf evidence had been ignored. Feroze Khan Vs. Captain Ghulam Nabi Khan (1966) 18 DLR (SC)289.

 

—Notice under sub-section (2) of s. 439 can be served straight away on the party's lawyer. Crown Vs. Md. Molla (1955) 7 DLR 515,

 

—A Special Tribunal, although a Criminal Court, constituted by the Special Statute, is not a criminal court within the meaning of the Code of Criminal Procedure. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

S.439(4) : Supreme Court when dealing with an acquittal order. In the case of acquittal the revisional court will have to see that the full facts and circumstances of the case were laid before the trial Court and the trial Court comprehended the entire case. There is no doubt that in setting aside the judgment in an acquittal case importance must be given as to the benefit of every doubt to the accused persons which is the basic principle of the criminal jurisprudence of this country. Hajee Md. Kudrat Ullah Vs. The State (1975) 27DLR 680.

 

—Second revision before the High Court Division after the Sessions Judge had passed an order under section 439A Cr.P.C. completely barred under section 439(4) Cr.P.C. Abdul Latif Vs. Nurjahan Begum, (1985) 37DLR 204.

 

—Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s.427 Penal Code without taking Magistrate's permission for investigation. The Magistrate took cognizance of the offence and started proceedings against the accused—The Sessions Judge being moved against the Magistrate taking cognizance of the offence u/s.427 Penal Code rejected the prayer for quashing.

 

Held : Sessions Judge's order in view of the provision of s.439(4) Cr.P.C. final. Siddique Ahmed Vs. The State (1985) 37 DLR 223.

 

8.439(4) & 439A(2): When there is a conflict between sub-section (2) of section 439A and sub-section(4) of section 439, the bar imposed by sub-section (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. Alauddin Vs. Jamaluddin (1985) 37DLR 164.

 

—No Second revision lies in view of the law in Sections 4-39{4) & 439A(2) Cr.P.C. Haji Golam Hossain Vs. Abdur Rahman Munshi and others (1988) 40 DLR (AD) 196.

 

Ss. 439(4), 439A & 561A : In view of the provisions of section 439(4), Cr.P.Code to the effect that nothing in section 439 Cr.P.Code shall be deemed to authorise the High Court Division to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439A Cr.P.C. this revisional application under the garb of section 561A Cr.P.C. cannot be entertained. MomotazMia Vs. State (1986) 38 DLR 152.

 

S. 439(4) read with S.439(A) : High Count Division u/s. 439(4) Cr.P.C. not competent to interfere with an order passed by the Session Judge u/s. 439 (A). Mohd. All Khan Vs. Serajul Islam Khan (1986) 38 DLR 207.

 

8.439(4) read with S.439A(2) : Conflict between them. Remedy kept open for the petitioner u/s.439 (2) is denied to him u/s.439(4)—Bar u/s.439 (4) shall prevail. Alauddin Vs. Jamaluddin (1986) 38 DLR 186.

 

8.439(4) read with S.439A : Despite the bar created by sec. 439A, High Court Division's power to call for records u/s.439 not restricted. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—A person aggrieved by Sessions Judge's order passed u/s.439A may move the High Court Division which the High Court Division shall entertain for doing justice when necessary. Shafiqur Rahman Vs. N.I. Chowdhury, (1983) 35 DLR (AD) 127.

 

—High Court Division's general power of suprinteridence to correct any illegality of the subordinate Court remains unhampered. Shafiqur Rahman Vs. NJ. Chowdhury, (1983) 35 DLR (AD) 127.

 

2nd part of sub-section (4) of s. 439 not consistent with sub-section (2) of section 439A, Shafiqur Rahman Vs. NJ. Chowdhury. (1983) 35 DLR (AD) 127.

 

—Sub-section (4) says that once the Sessions Judge has been moved under section 439A and he has passed an order in the matter, none of the parties of the said proceedings shall be allowed to move the High Court Division—So far as the opposite party in a case u/s.439A(2) is concerned he is not debarred from moving the High Court Division.          

 

—2nd part of sub-section (4) of section 439 is dearly inconsistent with the revisional powers of the High Court Division conserved by sub-section(I) of section 439 read with section 435 and sub-section (2) of section 439A. Shafiqur Rahman Vs. NJ. Chowdhury, (1983) 35 DLR (AD) 127.

 

—2nd part of sub-section(4) of s.439 can only be termed as a legislative error. Supervisory power of the High Court Division has also been guaranteed under Article 109 of the Constitution.    Shafiqur   Rahman   Vs.   N.I. Chowdhury, (1983) 35 DLR (AD) 127.

 

—High Court, Division is not powerless to correct any error and eliminate injustice. Shafiqur Rahman Vs. NJ. Chowdhury, (1983) 35 DLR (AD) 127.

 

8.439(4) & 439A(2) : When there is a conflict between sub-section (2) of section 439A and sub-section (4) of section 439, the bar imposed by sub­section^) of section 439 affecting jurisdiction of the High Court Division, shall prevail. The ratio decidendi of the decision of the Appellate Division in the case of Shafiqur Rahman reported in (1983) 35 DLR(AD) 127 is that the remedy which has been kept open under sub­section^) of section 439A has been denied by sub-s.(4) of section 439, Sub-section (4) of section 439 . relates to the jurisdiction of the High Court Division in entertaining a proceeding in revision under section 439 against an order passed by the Sessions Judge under section 439A, and sub­section^) puts a bar on the High Court Division for entertaining such proceeding, and when there is a conflict between sub-section (2) of section 439A and sub-section(4) of section 439, the bar imposed by sub-section (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. Alauddin Vs. Jamaluddin (1985) 37 DLR 164.

 

Secs.439(5) and 439A : Sub-^j, of s.439 provides that when an appeal to the High Court Division lies, but no appeal has in such a case been preferred, the High Court Division will have no power to entertain such a case in its revisional jurisdiction-Similarly when an appeal in view of the provision of section 439A lies to the Sessions Judges, but no appeal has been preferred to such a court, it will be incompetent to entertain that case in its revisional jurisdiction. All Hossain Vs. The State (1984) 36 DLR 111.

1867

Constitution of Pakistan, 1962 -26

Citation: (1980) 32 DLR 241, (1985) 37 DLR 290, (1984) 36 DLR 188, (1988) 40 DLR (AD) 246, (1985) 37 DLR 204, (1985) 37 DLR 316, (1984) 36 DLR 93, (1986) 38 DLR 152, (1986) 38 DLR 207, (1983) 35 DLR (AD) 127, (1986) 38 DLR (AD) 246, (1983) 35 DLR (AD) 127, (1984)

Subject: Constitution of Pakistan

Delivery Date: 2018-09-16

S.439A : Sessions Judge's order when becomes final. Petitioner filed a petition before the learned Sessions Judge under section 439A and that petition was rejected by the learned Sessions Judge. The present application of the petitioner in the High Court under section 439 Cr.P.C. is not maintainable. Order of the learned Sessions Judge summarily rejecting his prayer for setting aside the' final order passed by the learned Magistrate was final. Kafduddin Vs. Dabir Mondal (1980) 32 DLR 241.

 

Ss.439A, 435 and 561A. High Court can quash criminal proceeding pending before a Special court by virtue of its power vested under section 561A. Matimudul Haq Vs. Golam Moula, (1985) 37 DLR 290.

 

Ss. 439A and 435. Sessions Judge not competent to quash proceeding before a subordinate court acting under sections 435 and 439A. Mahmudul Haq Vs. Golam Moula, (1985) 37 DLR 290.

 

—Sessions Judge(or Asstt. Sessions Judge) has no.power to entertain a revision where an appeal could be filed against an order of acquittal. An appeal and no revision against an acquittal order would lie to the High Court Division u/s. 417(2) No revision would lie to the Sessions Judge or the Asstt. Session Judge u/s. 439A. All Hossaih Vs. The State (1984) 36 DLR 188.

Sections 439A, 436 and 439— Sessions Judge's power to direct further enquiry u/s. 436 Cr.P.C. on dismissal of complaint on an erroneous view of law. Bangladesh Vs. Yakub Sardar (1988) 40 DLR (AD) 246.

 

—Provision of section 561A Cr.P.C. cannot be invoked by a person after becoming unsuccessful under section 439A Cr.P.C. Abdul Latif Vs. Nurjahan Begum (1985) 37 DLR 204.

 

—Moving the High Court Division direct without approaching the Sessions Judge as provided in s. 439A from the order passed by the Magistrate not valid. Alhaj Rahim Uddin Shah Vs. Serajul Islam (1985) 37 DLR 316. "

 

S.439A : Section 439A of Cr.P.C. empowers an Additional Sessions Judge to hear revisional application under section 439A in respect of cases which may be -transferred to him by the Sessions Judge. The learned Advocate submits that sub-section (3) of section 439A does not categorically spell out that an Assistant Sessions Judge deemed to be an Additional Sessional Sessions Judge may also exercise the revisional powers. Nazir Ahmed Vs. Younus Meah. (1984) 36 DLR 93.

 

Ss. 439A 439(4), & 561A : In view of the provisions of section 439(4), Cr,P.Code to the effect that nothing in section 439 Cr.P.Code shall be deemed to authorise the High Court Division to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439A Cr.P.C. this revisional application under the garb of section 561A Cr.P.C. cannot be entertained. Momotaz Mia Vs. State (1986) 38 DLR 152.

 

S. 439(4) read with S.439(A) : High Court Division u/s. 439(4) Cr.P.C. not competent to interfere with an order passed by the Session Judge u/s. 439 (A). Mohd. All Khan Vs. Serajid Islam Khan (1986) 38 DLR 207.

8.439(4) read with S.439A : Despite the bar created by sec. 439A, High Court Division's power to call for records u/s.439 not restricted. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—A person aggrieved by Sessions Judge's order passed u/s.439A may move the High Court Division which the High Court Division shall entertain for doing justice when necessary. Shafiqur Rahman Vs. N.I. Chowdhury, (1983) 35 DLR (AD) 127.

 

Ss. 439A and 435: Anomaly created by retention of s.438 after passing of s. 439A--Powers which High Court Division and Sessions Judge can exercise u/s.435. The new section 439A inserted by Ordinance No.XLIX of 197.8. It exists curiously enough pari pasu with section 438 Cr.P.C. while in India after such amendment and conferment of revisional power, section 438 enabling the Sessions Judge for making reference to the High Court Tiad been deleted. The powers under section 439 is well known and the High Court Division may exercise all powers conferred on the Court of Appeal by sections 423, 426, 427 and 428. But the legislative backing for exercise of this power can be found in section 435 Cr.P.C. which postulates the High Court Division or any Sessions Judge, Metropolitan Magistrate or District Magistrate may call for and examine the record of any proceeding before any inferior Criminal Court situated within the local limits of its or his jurisdiction "for the purpose of satisfying itself or himself as to the, correctness, legality or propriety of any finding sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior Court."

 

Since the Sessions Judge can now exercise the nature of the powers conferred in section 439 of the High Court Division, the question is, how far said ' powers are now available for the Sessions Judge for the purpose of satisfying himself as to the correctness, legality or propriety of any order and as to the regularity of any proceeding. In order to do so he is to follow the procedure that has been given by the Code itself.

The legislative intent in conferring power u/s 439A does not mean conferment of power u/s. 561A as well. Shajahan Vs. Session Judge (1986) 38 DLR (AD) 246.

 

S. . 439Af Conflict between sub­section (1) and sub-section 4 of s.439 and sub-section (2) of S.439A. Having scrutinized the provisions of sections 439 and 439A of Cr. P.C. there is conflict between sub-section (1) and sub-section(4) of section 439 on the one hand and sub-section (4) of section 439A, and sub-scction(2) of section 439A, on the other hand.

 

In the first case what has been conferred by sub­section (I) of s.439 has been taken away by sub­section (4) of sec.439 at least in respect of an order passed by the Sessions Judge under section 439A. In the second case what has been conferred by sub­section (2) of section 439A has been negatived by section (4) of section 439. The conflict arising out of the amendments seems to be the result of confusion and want of proper application of the legislative mind which can be removed by further amendments of these two sections. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

S.439A and 439(5) : No powers of revision where an appeal would lie. Tb.e newly inserted section 439A of the Code of Criminal Procedure empowers the Sessions Judge to exercise all or any of the powers which may be exercised by the High Court Division under section 439 CrP.C. Sub-section (5) of section 439 Cr.P.C. provides that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. It follows that even the High Court Division has no powers to entertain any proceeding by way of revision at the instance of the party who could have appealed. All Hossain Vs. The State (1984) 36 DLR 188.

 

Ss. 439A & 439 : Majority view: Conflict between sub-sections (I) & (4) of section 439 and between sub-section (4) of section 439 and sub­section (2) of section 439A. Sections Judge's jurisdiction u/s. 439A is co­equal with that of High Court Division's u/s.439. Therefore, the party aggrieved by Sessions Judge's order made u/s. 439 A cannot move the High Court Division against that order—Also an order passed by Sessions Judge u/s.439A is made final under sub­section (2) of section 439A. (in relation to the person who moved the Sessions Judge.) Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Order of the Sessions Judge in relation to the person who moved the Sessions Judge is final under sub-section (2) of section 439A and as such in case he felt aggrieved by such order, he is barred from moving the High Court Division. But the party against whom Sessions Judge's order is made, is not prohibited from moving High Court Division as is clear from s. 439A(2). But sub-section. (4) of section 439 completely bars the High Court Division to entertain an application against an order passed by Sessions Judge u/s. 439A.

 

Thus sub-section(4) takes away what section 439A is supposed to confer leading to an unbridgeable conflict between the two. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

 

—Moving the High Court Division direct without approaching the Sessions Judge as provided in section 439A from the order passed by the Magistrate not valid. Alhaj Rahim Uddin Shah Vs. SerajulIslam (1985) 37DLR 316.

 

Sec. 439A(2) : Under sub-section(2) of section 439A, the opposite party is not debarred from moving the High Court Division u/s. 439.

The decision of the Sessions Judge being final the person who moved the Sessions Judge in revision is impliedly debarred from moving a second revision before the High Court Division but it does not debar his opposite party to challenge legality and propriety of the decision of the Sessions Judge by invoking revisional jurisdiction of the High Court Division under section 439. Shafiqur Rahman Vs. Nurul Islam Chowdhury (1983) 35 DLR (AD) 127.

The Sessions Judge acting u/s. 439A acts as an ordinary "criminal court", subordinate to the High Court Division and the proceedings before him cannot be immune from being examined by the High Court Division and may, in an appropriate case, be interfered with. Shafiqur Rahman Vs. Nurul Islam Chowdhury, (1983) 35 DLR (AD) 127.

 

—Order u/s. 439A(2) not being final, the revisional jurisdiction under section 439 cannot be said to be not open to him.                           

 

Second part of the newly inserted sub-section(4) is not to be taken in its absolute literal sense so as to restrict the High Court Division's power conferred u/s. 439(1). Shafiqur Rahman Vs. Nurul Islam Chowdhury, (1983) 35 DLR (AD) 127.

 

Revisional jurisdiction of the High Court Division cannot be said to have been curtailed or taken away by sub-section (4) of section 439. Shafiqur Rahman Vs. Nurul Islam Chowdhury, (1983) 35 DLR (AD) 127.

 

—High Court Division in exercise of its revisional jurisdiction can disregard, in an appropriate case, an order of Session Judge u/s. 439A                                                          

 

In respect of any proceedings before the Sessions Judge under section 439A, if the High Court Division is satisfied that interference is necessary to rectify any illegality and avoid miscarriage of justice it is competent to do so, Shafiqur Rahman Vs. Nurul Islam Chowdhury, (1983) 35 DLR (AD) 127.

 

Sessions Judge acting under section 439A authorised to exercise any of the powers which may be exercised by the High Court Division under section 439, but in exercising the powers under section 439A the Sessions Judges do .not exercise the jurisdiction concurrently with that of the High Court Division.                                              

 

8.439(4) & 439A(2) : When there is a conflict between sub-section (2) of section "439A and sub-section (4) of section 439, the bar imposed by sub-section(4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. The ratio decidendi of the decision of the Appellate Division in the case of Shafiqur Rahman reported in (1983) 35 DLR(AD) 127 is that the remedy which has been kept open under sub-section(2) of section 439A has been denied by sub-s.(4) of section 439. Sub-section (4) of section 439 relates to the jurisdiction of the High Court Division in entertaining a proceeding in revision under section 439 against an order passed by the Sessions Judge under section 439A, and sub­section^) puts a bar on the High Court Division for entertaining such proceeding, and when there is a conflict between sub-section (2) of section 439A and sub-scction(4) of section 439, the bar imposed by sub-section (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. Alauddin Vs. Jamaluddin (1985) 37 DLR 164.

 

S. 439A(2) & S. 439(4) : When there is a conflict between subsection (2) of section 439A and subsection (4) of section 439, the bar imposed by subsection (4) of section 439 affecting jurisdiction of the High Court Division, shall prevail. AlauddinVJamaluddin (1985) 37DLR 164.

 

S. 439A(2) read with S. 439(4) : Conflict between them. Remedy kept open for the petitioner u/s. 439(2) is denied to him ii/s. 439(4)Bar u/s. 439(4) shall prevail. Alauddin Vs. Jamaluddin (1986) 38 DLR 186.

 

S.464(I) : Court is not bound to enquire into a plea of insanity unless it has reason to believe that the accused was of unsound mind. Mobarak All Vs. Ud. HachiMiah (1965) 17 DLR (Dae) 68.

 

1868

Constitution of Pakistan, 1962 -27

Citation: (1956) 8 DLR 675, (1987) 39 DLR 109, (1964) 16 DLR 276, (1957) 9 DLR 269, 2 PCR 97, 2 PCR 127, (1957) 9 DLR 269, (1962) 14 DLR 39,(1963) 15 DLR 108, (1955) 7 DLR 299, (1964) 16 DLR 276, (1964) 16 DLR (WP) 145, 2 PCR 127, (1964) 16 DLR 27,6, (1968) 20

Subject: Constitution of Pakistan

Delivery Date: 2018-09-16

SECTION   476 SYNOPSIS

1. Appeal.

2. Applicability and scope.

3. Civil and Revenue Court.

4. Order against strangers.

5. Preliminary inquiry!

6. Miscellaneous.

 

1.   APPEAL.

—Complaint under the section is appealable. A complaint under section 476 is appealable under section 476B. The complaint if not challenged by filing an appeal, cannot later on be questioned on the plea that complaint made was not legally valid. Mizanur Rahman Vs. State (1956) 8 DLR 675.

 

—A complaint, outside the provisions of section 476, cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction. Saleha Khatun Vs. State (1987) 39 DLR 109.

 

2. APPLICABILITY  AND  SCOPE.

—It is obligatory upon the Court to consider, before launching upon a prosecution of a party for giving false evidence in court, whether it is expedient, in the interest of justice, to do so. Abdus Samad Vs. Keshab Lai Gope (1964) 16 DLR 276.

 

—A complaint must set forth the offence and the precise facts constituting the same—Non-compliance amounts to material irregularity. All Mia Vs. Crown (1957) 9 DLR 269.

 

—When the offence committed is one under section 471 of the Penal Code, it was illegal to reduce the charge to one under section 474 of the P.P.C, and to prosecute the accused without a complaint under, section 476 in order to circumvent the provisions of sections 195 to 199 of the Code. Make Alam Vs. Crown 2 PCR 97.

 

—It was essential for the Court to consider whether there was a reasonable probability for the conviction of the accused and whether it was expedient in the interest of justice to order the prosecution of the accused. These two ingredients can never exist in a case in which the accused is let off only on the ground of doubt. A. Rahman Vs. Nur Mohammad 2 PCR 127.

 

3. CIVIL AND REVENUE COURT.

Complaint when improper. A complaint under section 476 is improper when the two Courts take two different views on the same facts. All Mia Vs. Crown (1957) 9 DLR 269.

 

4.   ORDER   AGAINST   STRANGERS.

—Complaint can only be against parties to a proceeding and not against witnesses. All Mia Vs. Crown (1957) 9 DLR 269.

 

5.   PRELIMINARY  INQUIRY.

—Preliminary inquiry to be held in accordance with the discretion of the Court. The question whether a preliminary inquiry under section 476, should be held or not is one depending entirely upon the facts and circumstances of each case and the discretion vested under the expression "after such preliminary inquiry, if any, as it thinks necessary" occurring in section 476 has to be expressed on a proper application of the judicial mind and not arbitrarily or capriciously. Alhaj Aley Muhammad Akand Vs. State (1962) 14 DLR 39.

 

—No preliminary enquiry under section 476, necessary in respect of an offence falling under section 183 P.P.C. as such a matter is covered by "section 195(I)(a) CrP.Code in which case complaint can be made straight without preliminary enquiry. Md. Fayzul Hoq Vs. Akbar Haji (1963) 15 DLR 108.

 

—When Court is satisfied from the materials in the records of a case that a complaint under section 476 should be made, it can do so without the necessity of examining the witnesses afresh. It is not incumbent on the Court to hold a preliminary enquiry in every case before filing the complaint where, on the facts found, the Court is satisfied that it is expedient in the interest of justice to make the complaint. Didar Alt Vs. A. Hamid (1955) 7 DLR 299.

 

6.   MISCELLANEOUS.

—For sanction to proseeute by a particular court it is not necessary that the proceedings should be pending in that Court. The view taken was that the application for prosecution under section 476 having been made before the Court of first instance and since the suit in respect of which the application was made was not pending before this Court it was not maintainable.

 

Held: It is not necessary that the proceedings in respect of which the application is made, should itself be pending before the Court. Abdus Samad Vs. Keshab Lai (1964) 16 DLR 276.

 

—Protection afforded in relation to offences mentioned in the section can be availed of only by the party to proceedings—Advocate appearing on behalf of party is not entitled to any such protection. Muzaffar Ahmad Vs. Mst. Rahmat Bibi (1964) 16 DLR (WP) 145.

 

—When the offence committed is one under section 471 of the Penal Code, it was illegal to reduce the charge to one under section 474 of the P.P. Code and to prosecute the accused without a complainant under section 476 in order to circumvent, the provisions of sections 195 to 199 of the Code. Make Alam Vs. Crown 2 PCR 127.

 

S.476B

—Appellate Court has no jurisdiction to remand back a case for sanction to the trial Court. The only power which the Appellate Court has is that, in an appropriate case, it can itself make the complaint or direct the withdrawal of such complaint. The Appellate Court has no jurisdiction to remand back the case to trial Court. Abdus Samad Vs. Keshab Lai Cope (1964) 16 DLR 27,6.

 

—Civil Court after the inquiry considers it expedient to file complaint. The fact that the order of court directed framing of complaint under section 419, P.P.C. but in point of fact complaint as framed mentioned sections other than 419, P.P.C. That would not show that Court has not applied its mind to the question whether complaint was "expedient in the interest of justice". Muhammad Ehsan Vs. The: Slate, (1968) 20 DLR (WP) 132.

 

—Court's decree has been passed on the basis of a document. A police officer makes an application lo the Court to hand over the said document to him on the allegation that the document is stated to be a forged one and for enquiry into that allegation. The Court by its order granted the police prayer.

 

Held : The order is misconceived. The document having been used in a proceeding id Court,'the Court alone has the power to hold an enrrdiry about the allegation of forgery of the document; the Court can not divest of its own jurisdiction over the matter and allow some other agency to usurp its function. S. M. Hafizuddin Ahmed Vs. Jamaluddin Ahmed (1985) 37DLR 207.

 

—The enquiry by the police would be abortive, for the police can not usefully submit charge sheet in the case nor the law permit any inquiry by the police when the document has been produced before a Court in connection with a proceeding in the said Court. In the facts of the present case we think that the according of permission by the District Judge to the police amounts to an abuse of the process of the Court. The law requires the Court itself to hold an enquiry, if necessary, in a matter like this and the Court can not divest itself of its jurisdiction to hold such inquiry and allow another agency to conduct Ihe same. Orders of the District Judge and Subordinate Judge respectively were illegal and further that the CID police have no jurisdiction to make an enquiry into the alleged forgery S. M. Hafizuddin Ahmed Vs. Jamaluddin Ahmed (1985) 37DLR 207.

 

[See the case Hrishikesh Dutta Vs. The State, (1968) 20 DLR. 66 u/s. 195(l)(c), above.]

 

S. 476 : A complaint, outside the provisions of section 476, cannot be filed by any civil, revenue or criminal court under its inhereent jurisdiction. SalehaKhatun Vs. State. (1987) 39 DLR 109.

 

SectionM 476 & 195 : Section 476 is not independent of S. 195 of the Code—Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan & ors. Vs. The State & am. (1988) 40 DLR (AD) 226.

 

Sections 476 and 195(a)(b)(c) : There is specified procedure and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of S. 195 Cr.P.C. Abdul Hai Khan & ors. Vs. The State & anr. (1988) 40 DLR (AD) 226.

 

S. 476(1) : Enquiry contemplated in section 476(1) does not mean a full dressed judicial enquiry as-provided in Chapter XVIII or other Chapters of the Criminal Procedure Code. The enquiry intended there is one of very technical nature and it practically means a satisfaction of the Courts on facts. Golam Sarwar Vs. Slate, (1973) 25 DLR 472.

 

—Expression "any offence referred to in section 195"—Inclusion in complaint of offences under Penal Code other than those mentioned .in section 195, Cr.P.C. will not render complaint under section 476, Cr.P.C. invalid. A complaint under section 476 of Code is not rendered invalid on the ground that an offence alleged in the complaint against the accused was not one of the offences mentioned in section 195, Cr.P.C. S.476 of the Code is merely an enabling section and does not debar a court from including in its complaint other sections of the Penal Code not mentioned in section 195, Cr.P.C. The provisions contained in section 195, G.P.C. are only by the way of an exception to the general provision contained in section 190, Cr.P.C. and as such the machinery of law could be set in motion by anybody including the Civil Judge for the commission of any offence including all those not covered by clause (c) of sub-section (1) of section 195, Cr.P.C. Muhammad EhsanVs. The State, (1968) 20 DLR (WP) 132.

 

S.476(l)(b) : For a complaint under section 476(l)(b) it is not always necessary to examine any witness afresh. Preliminary enquiry not always incumbent. Golam Sarwar Vs. State, (1973) 25 DLR 472.

 

S. 480 : A Revenue Officer is not authorised to pass a sentence of fine (or imprisonment) for contempt of Court under section 480, he not being designated as a Court within the meaning of "any Civil, Criminal or Revenue Court." His remedy for contempt lies in making of a complaint under section 228 Pakistan Penal Code. State Vs. Abu SyedMd. Idris (1965) 17DLR (SC) 477.

 

—Court—Revenue Officer functioning under section 19(1) of East Bengal Slate Acquisition Act (XXVIII of 1951) is not a Court and, therefore, he cannot find a man guilty for contempt of Court and impose a sentence of punishment upon him. Kafiluddin alias Kafiluddin Sarder Vs. Slate (1962) 14 DLR 425 ; 8 PLR (Dae) 1963.

 

S.481 : Court trying an offence must follow the procedure laid down in section 481—If a fine over Rs. 200/- is called for, complaint has to be made and the same referred to an appropriate Court. If an offence falling under section 228, Pak. Penal Code is committed, ex facie, the "Court" can itself try it only when a fine of two hundred rupees or less is imposed. This postulates that the offence is committed in respect of a "Court". Besides, even when an aggrieved "Court" is trying an offence under section 228 of the Penal Code, which is committed, exfacie, the said "Court" is required to follow the procedure laid down in section 481 of the Code of Criminal Procedure under which it is mandatory to record the statement of the accused.

 

Whenever a sentence of a fine of more than two hundred rupees is considered to be appropriate the Court has to make a complaint about the alleged incident, setting out the necessary particulars, and thereupon, an appropriate Court would proceed to try the alleged offence under the provisions of section 482. Aziza Khatun Vs. The State, (1967) 19 DLR 355.

 

S.485, When a witness can refuse to answer a question as is put to him by the Court. A Judge may take action under section 485, if a witness refuses to answer such questions as are put to him, but, if the questions are themselves meaningless, then the witness has no other alternative but, keeping in mind the dignity of the Court, to keep quiet and respectfully refuse to answer them. Bashir Ahmed Vs. State'(1958) 10 DLR (WP).12.

 

S. 487 : Cognizance of offence. There is no prohibition contained in section 487 such as have the effect of preventing cognizance of ah offence so long as the Magistrate did not actually try the case himself. 54 CWN(2 b R)7L

 

1869

Constitution of Pakistan, 1962 -28

Citation: (1958) 10 DLRJWP) 1, (1966) IS DLR (WP) 42, (1957) 9 DLR (WP) 37, (1974) 26 DLR (SC)26, (1958) 10 DLR (SC) 196, (1968) 20 DLR (WP) 104, (1965) 17 DLR (WP) 42, (1965) 17 DLR (Dae) 173, (1963) 15 DLR (WP) 37, (1952) 4 DLR 467, (1952) 4 DLR 467, (1970) 22

Subject: Constitution of Pakistan

Delivery Date: 2018-09-17

SECTION  488 Synopsis.

1. Agreement on maintenance.

2. Amount of maintenance

3. Application under.

4. Award of maintenance.

5. Divorce.

6. Jurisdiction.

7. Maintenance of children.

8. Nature and scope.

9. Neglect to maintain.

10. Question of relationship.

11. Miscellaneous.

 

1. Agreement on maintenance.

—Agreement executed by the husband in favour of the wife providing maintenance allowance does not oust jurisdiction of the Court to award maintenance under section 488. Md Amin Vs. Mumiaz Begum (1958) 10 DLRJWP) 1.

 

—Minors acting through their mother cannot compromise themselves out of their right of maintenance. A minor cannot contract himself out of the statutory right of maintenance under section 488, either himself or through any other person including his mother, for the reason that the minor is incompetent to enter into contract. Manzoor Vs. Abdul Qaium, (1966) IS DLR (WP) 42.

 

2. Amount of maintenance

—Maximum amount of Rs.100/- means each (where there is more than one) of the applicants is entitled to a maximum of Rs. 100/- Sughra Begum Vs. Md, Din (1957) 9 DLR (WP) 37.

 

— The word 'or' in sub-section (I) of section 488 shows that application for maintenance can be made for the wife or for the child and a sum of Taka 400/- is estimated to be awardable to each of the dependents by the husband or the father, as the case may be. Amount 400/- is the maximum. It may, however, be observed that the legislature has not fixed the minimum amount which should be allowed as maintenance allowance for each of the dependents. It has been left to the discretion of the Magistrate to allow maintenance for each of the dependents but in any case maintenance allowance shall not exceed Rs. 400/- in the whole for each of them. In every case while granting maintenance allowance the Magistrate will apply his judicial discretion and take into consideration the means of the person ordered to pay «iaintenance, Begum Hamida Vs. Abdul Hamid (1974) 26 DLR (SC)26.

 

3. Application  under.

—Consideration of the father's right to the custody of the child in an application under section 488. It cannot be laid down broadly that the question of the father's right to custody of the child is not at all germane to section 488. It may very well have a bearing on the question whether the father had in fact neglected or refused to maintain the child or not. Mst. Hamida Begum Vs. Syed Mashaf Hussain Shah (1958) 10 DLR (SC) 196.

 

—Father's right to the "custody of the minors where application for maintenance under section 488 is made. —'Child unable to maintain itself explained— Educational expenses to be taken into consideration.

The father never made bona fide demands for the custody of the minors either before the application moved against him under section 488, Cr.P.C. or even thereafter; he is, therefore not entitled under the Muhammadan Law to the custody of the child. Paramount and determining consideration in all such cases is the welfare of the minor and not the rights of the parents, in whose favour an initial but rcbuttable presumption can be raised. Insofar as the father's responsibility for the maintenance of the children is concerned, the expression used in section 488, Cr.P.Code is "child unable to maintain itself. The ages which would otherwise be relevant for the demand of custody would not be strictly relevant in­sofar as the father's responsibility for the maintenance is concerned. The legal requirement is that the child must be unable to maintain himself. This inability may be due to a variety of reasons including minority. For instance, it could also be due to protracted illness or engagement in studies. With a growing consciousness of democratic values, educational expenses consistent with the status of the family should in all fairness be deemed to be a relevant consideration in the assessment of maintenance allowance. Education which was once considered to be a luxury or a comfort is now undoubtedly a necessity and should be accepted by the Courts as such, of course keeping in view the status of the family. Fazal Ahmed Vs. Mst. Kaniz Mm, (1968) 20 DLR (WP) 104.

 

4. Award of maintenance.

—Proceeding under section 488 maintainable even where a suit for custody of the minor pending before a Civil Court under section 25 of the Guardianship Act. Khan Muhammad Vs. Mst. GoharBanu (1965) 17 DLR (WP) 42.

 

—Maintenance of children—Not limited to the' time dll the children come to the age of majority— Foundation of the claim is based on the inability and not on his or her being within a certain age group— No limitation of age. Omer All Vs. Shamsunnahar Begm (1965) 17 DLR (Dae) 173.

 

—Wife obtained an order of maintenance under section 488—This order will not become ineffective if the husband and wife, after living together for some time again separates. Muhammad Hossain Vs. Sakira Begum and Stale (1963) 15 DLR (WP) 37.

 

—Maintenance date when liability starts. Unless an order is passed by the trying Magistrate that the wife is entitled to maintenance under sec. 488 from the date of her application to the Court, the maintenance shall be payable from the date of the Magistrate's order. Rahimunnessa Vs. Fazaruddin Bepari (1952) 4 DLR 467.

 

—Under the provisions of section 488 a wife cannot get a separate house from her husband. Rahimunnessa Vs. Fazaruddin Bepari (1952) 4 DLR 467.

—Word 'maintenance' does not include education at higher levels ad-infinitum—A child is to be maintained until the child is able to earn its livelihood by honest and decent means in keeping with its family status. Alaf. Din Vs. Mst. Parveen Akhtar,(1970) 22 DLR (SC) 192.

 

—Maintenance award given by a Magistrate under section 488 of the Code after the passing of the Family Courts Act but before the Act was made applicable to this area—Valid. Mere fact that a revision was then pending before the High Court will not attract the provisions of the Family Courts Act as a revision is not a continuation of the original proceeding like an appeal. Alaf. Din Vs. t:Parveen Akhtar, (1970) 22 DLR (SC) 192.

 

5.   Divorce.

—Maintenance—After divorce, wife entitled to maintenance during the period of Iddat. The principle is not affected by the nature of the divorce, so that even when the divorce is irrevocable from the date of pronouncement, the divorced wife remains entitled to maintenance until the period of Iddat has expired. Sh. Azmatulla Vs. Imtiaz Begum (1959) 11 DLR (WP) 74.

 

Maintenance during the period of iddat after divorce—A single instance of adultery does not deprive a wife of her maintenance right. A divorced wife is entitled to maintenance for the period of Iddat. Mahua Khatun Vs. Mohammad Motaleb Biswas (1967) 19 DLR 628.

 

6.   Jurisdiction.

—Magistrate has jurisdiction to grant maintenance upto the end of the period of Iddat. Sh. Azmatullah Vs. Imtiaz Begum (1959) 11 DLR (WP) 74.

 

—A decree for maintenance by a civil court does not take away, in a proper case, the jurisdiction of the criminal court to make an order under section 488. Md. Amin Vs. Mumtaz Begum (1958) 10 DLR(WP)1

 

7. Maintenance of children.

—Father prima facie entitled to custody of child under Muhammadan Law—Not guilty of neglect if he fails to maintain in absence of compliance with his demands. The obligation imposed by section 488 on the father intrinsically contains an implication that the custody of the child should be with him unless the general law varies that position and enables the child to live with someone else. In the latter case, the father would be under a duty to pay the maintenance allowance for the child to the individual entitled to its custody but not in the absence of an order of a competent Court or a rule of that general law to that effect. To insist that the father in such cases must be forced to go to the civil court for redress may be tantamount to putting a premium on the act of a party acting wrongfully. It may be sufficient for the father to establish that he had all along been anxious and had made bonafide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, for, a plea to be advanced successfully on his behalf in answer to a petition under section 488, that in the absence of compliance with 'his wishes, he was not guilty of negligence or refusal to maintain the child, by declining to make an allowance for its upkeep. Mst, Hamida Begum Vs. Mashaf Hossain (1958) 10 DLR (SC) 196.

 

—Wife, when has the right to custody of child although she refuses to live with husband and found disentitled to maintenance—Father, nevertheless, is bound to maintain child. It is of course open to the father to obtain the custody of the child through Court to avoid his liability. Mst. Kanej Khalida Vs. Ibrahim (1959) 11 DLR (WP) 4; (1958) PLD (Lah) 1014.

 

—In the case of dispute over the guardianship of the minors, the Court will take cognizance of the fact as to who is the prima facie guardian of the child, leaving it to the aggrieved person to seek his remedy from the Civil Court. Mashaf Hossain Vs, Hamida Begum (1957) 9 DLR (WP) 30.

—Father as natural guardian of his child can insist that the child must live with him to earn maintenance. Mashaf Hossain Vs. Hamida Begum (1957) 9 DLR (WP) 30.

 

—Where mother under law is entitled to the custody of a minor, refusal to pay maintenance will be hit by section 488. Mashaf Hossain Vs. Ilamida Begum (1957) 9 DLR (WP) 30.

 

—"Child" does not necessarily mean a minor. It means a son or a daughter who is unable to support himself or herself. Sughra Begum Vs. Md. Din (1957) 9 DLR (WP) 37.

 

8. Nature and scope.

—Provisions of the section are of universal application and not controlled by the personal laws of the husband and wife. Mushaf Hossain Vs. Hamida Begum (1957) 9 DLR (WP) 30. 9. Neglect  to  maintain.

—"Neglect or-refusal" to maintain child-Father's bonafide demands for custody of child is a relevant consideration in dealing with the question of neglect. Hamida Begum Vs. Mashaf Hossain (1958) 10DLR (SC) 196.

—Neglect or refusal to maintain may be expressed or implied and may be inferred from the conductof the person concerned. Begum Hamida Vs. Abdul Hamid (1974) 26 DLK (SC) 26.

 

10. Question  of relationship.

—Maintenance   order   when   becomes

inoperative. The right to maintenance is personal right, and the obligation to maintain subsists so long as the relationship between the parties subsists. The death of the husband or the father makes the order passed under this section inoperative and the claim in respect of the arrears becomes enforceable against the estate of the deceased. Similarly, no one can realise the arrears from the husband after the death of the wife in whose favour the order for maintenance had been passed. Anwar Shah Vs. Firoze AH Shah (1959) 11 DLR (WP) 12 : (1959) PW(Lah)714.

 

11.   Miscellaneous.

—Arrears of maintenance for a period beyond one year from the death of application. Order was made on the 7th of May, 1962, under section 488 for payment of maintenance. Wife's application on the 20th of March, 1963, for the recovery of the maintenance was dismissed in default. Thereafter another application for the same relief was filed on the 18th of September, 1963, which was more than a year from 7.5.62.

Held: Not recoverable under section 488. Such arrears can be realised only through Civil Court. MiArifVs. Mst. Kalsoom Begum (1964) 16 DLR (W)103.

 

—Second application for maintenance if and when barred—Principle of resjudicata and autrefois acquit tf applicable to proceedings under section 488. Where a first application, made under sec. 488, lias not been decided on merits (e.g., where it was dismissed for default) or, if the circumstances have changed, a second application made on fresh grounds for a different period will not be barred. If, for example, the wife declines to live with her husband and her application for maintenance is dismissed, but she subsequently changes her mind and offers to live with her husband, who then refuses or neglects to maintain her, and she applies to the Court under section 488, there is no reason why the second application for maintenance in the changed circumstances for a different period should not be entertained.

If a second application is made for a different period, but on precisely the same facts, as have already been adjudicated upon, the application is not barred by any specific provision of law but is not to be gone into on grounds of finality, which attaches to a matter fully and finally decided. Neither the provisions of section 11 of the Code of Civil Procedure, that is, the principle of res judicata, which are applicable to civil cases, nor those of section 403 Cr.P.Code embodying the principle of autre fois acquit are attracted to an application under section 488. Mst. Kanej Khalida Vs. Ibrahim (1959) 11 DLR (WP) 4 : (1958) PLD (Lah) 1014.

—Husband's plea that the wife lived with him for a time and he is not bound to pay any maintenance—It should be enquired into. If on the application by the wife for the levy of any amount due to her on account of maintenance under sec. 488, by the issue of a warrant, the husband raises the objection that there is no liability on his part to pay the maintenance to his wife as the latter had lived with him, the Magistrate shall have to enquire into that question. Dud Meher Bibi Vs. Abdul Gafur (1959) 11 DLR 396 : (1960) PLD (Doc) 46.

 

—Maintenance order—Limitation for the levy of maintenance due. Under the second proviso to section 488(3) no warrant can issue for the levy of the amount of maintenance due unless the application is made within one year from the date when it is due. Dud Meher Bibi Vs. Abdul Gafur (1959) 11 DLR 396: (1960) PLD (Dae) 46.

 

—Proceedings under section 488—Failure to record a finding as to neglect or refusal to maintain wife and child constitutes only an irregularity curable under section 537. Sh. Azmalullah Vs. Mst. Imtiaz Begum (1959)11 DLR (WP) 74 : (1959) PLDLahl67.

 

—Wife found not entitled to maintenance— Father nevertheless is bound to maintain child, remaining with the mother. Umra Khan Vs. Sultana (1953) 6 DLR (WP) 174.

 

Secs.488 and 489 : Maintenance allowance to wife—-Allegation of divorce was subsequently set up by husband—Magistrate not legally entitled to make any alteration in allowance without first holding an enquiry under section 489 of the Code into question of divorce—[Muslim Family Laws Ordinance (VIII of 1961), section 7.—State Vs. Mst. Taquir Fatima (1964) 16 DLR (WP) 104.

 

S.488(I) : Where the wife is solvent enough to maintain herself even without husband paying the maintenance, she cannot claim maintenance in circumstances like this. But there being no obligation of the wife to maintain the issues born to her by the husband, maintenance for such issues is the responsibility of the husband and as such he must be saddled with it. Begum Hamida Vs. Abdul Hamid (1974) 26 DLR (SC) 26.

 

8.488(3) & 386(1) : Maintenance-Attachment of monthly salary when salary had neither been received by office nor was ready for disbursement—attachment not legal. The order of attachment of the applicant's salary was passed by the Magistrate on the 27th of April, 1962, and order of attachment was actually issued on 30th of April, 1962. Neither on the date on which the said order was passed, nor on the date on which it was issued the applicant's salary for the month of April, 1962, was drawn by his office from the treasury. On these dates it is obvious that it was not available to his office to be disbursed to him, Muhammad Hanif Vs. Mst. Anis Fatema (1964)16 DLR (WP) 106.

 

S.488(4)&(5) : The words "living in adultery," The words "living in adultery" mean and imply a continuous course of conduct of adultery, not necessarily, promiscuous, but certainly something more than an occasional lapse from the 1 path of virtue. The word used in section 488 is I "living" as opposed to the mere commission of an act of adultery. The word "living" by itself denotes something continuous, something that is lasting and not merely spasmodic or occasional.

 

Even if the child is illegitimate that by itself cannot be sufficient for holding that the wife is  j living in adultery so as to disentitle her from receiving the maintenance under section 488. State Vs. Muhammad Jamil (1964) 16 DLR (WP) 36.

 

8.488(6) : Without a finding that the Court was satisfied that the husband or the father was wilfully neglecting to attend the Court—Order to pay maintenance invalid. Soleman Sk. Vs. Crom (1955) 7 DLR (WP) 8.

8.488(8) : Residence—Question of fact to be decided on facts of each case. Question of residence referred to in section 488(8), is ultimately a question of fact and has to be decided upon the facts of each case

the distinction between a mere visit and residence should be borne in mind. Where there is something more than a flying visit, where a man leaves his house and resides for some time in the house of parents-in-law with his wife, that is a sufficient residence within the meaning of sub-section (8) of section 488. Raiman Vs. Bano (1963) 15 DLR (WP) 46.

 

Secs.489 and 488 : Maintenance allowance to wife—Allegation of divorce was subsequently set up by husband—Magistrate not legally entitled to make any alteration in allowance without first holding an enquiry under section 489 of the Code into question of divorce—[Muslim Family Laws Ordinance (VIII of 1961), section 7.] —State Vs. Mst. Taquir Fatima (1964) 16 DLR (WP) 104.

 

S.491 : As it stood in 1899 and after amendment of 1923. Constitution of Bangladesh 1972.

 

Article 102—High Court's power to issue writs. In 1899 section 491 of the Criminal Procedure Code took away the power of the High Courts of Calcutta, Madras and Bombay to issue writs of Habeas Corpus and empowered them to issue directions in the nature of Habeas Corpus subject to limitations. In 1923 by an amendment of section 491 the power to issue directions in the nature of Habeas Corpus was also conferred on other High Courts. Constitution has conferred fundamental rights and Art. 102 has empowered the High Court to issue certain writs, inter alia, "so that the eourt may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". The High Court is enjoined upon to satisfy itself that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner. Kripa Sindhu Hazra Vs. State (1978) 30 DLR 103.

 

S.491:Expression"whenever it thinks fit "-explained In section 491 Cr.P.C. the High Court will interfere "whenever it thinks fit" that a person is "illegally or improperly detained." Section 491 Cr.P.C, is a pre-constitutional piece of legislation and it has nothing to do with fundamental right conferred by the Constitution of 1972. It's scope is much wider and at the same time restricted. The Indian Supreme Court in A.I.R. 1964 (SC) 381 held that content of section 491 Cr. P.C. was enlarged as a result of the enactment of the Constitution for before the Constitution there were no fundamental rights the violation of which would have entitled a person to obtain a writ of habeas corpus.

 

The contention that the scope of s. 491 is limited and narrower than what it is in Article 102 of the Constitution has no force. The expression "whenever it thinks fit" in s. 491 confers, an absolute discretion on the court to exercise its power thereunder or not to do so, having regard to the circumstances of each case. Under s. 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the relief. It is only a discretionary jurisdiction conceived as a check on an arbitrary action. Kripa Sindhu Hazra Vs. State (1978) 30 DLR 103.

 

—Review application u/s. 491 Cr.P.Code against detention orders passed by executive authority on the latter's satisfaction as to the necessity of making such orders—Not subject to judicial review. Under Article 102 of the Bangladesh Constitution the Court has got constitutional powers to examine the facts of a case of a detenu in order "to satisfy itself that the detenu is not being detained without lawful authority or in an unlawful manner. But under sec. 491 of the Criminal Procedure Code what the Court is required to do is to see whether a person has been illegally or improperly deu .led. Under Article 102 the Court has-been vested with wide powers to scrutinise a case in order to discharge its constitutional duty to' see that every person is dealt with in accordance with law and as such that Court has greater powers than the Court acting under sec. 491. In other words, the scope of Article 102 is much wider than that of sec. 491. Mukhlesur Rahman Vs. State (1976) 28 DLR 172.

—Supreme Court's power and duty to set a person at liberty when he is found to be held in custody illegally. Apart from the power of this Court under section 491 of the Code of Criminal Procedure to examine as to whether a person is being .held in custody without any lawful authority or in unlawful manner, a duty has been cast upon this Court under clause(2)(b)(I) of Article 102 of the Constitution of the People's Republic of Bangladesh to examine the legality of the detention of a person. Hence it becomes a duty of this Court to set a person at liberty who is being illegally detained. Maimunnessa Vs. The Slate (1974) 26 DLR 241

 

—Read with Bangladesh Constitution 1972 Article 102(2)(6).

 

Law imposes an obligation on the High Court to see if the satisfaction of the detaining authority about grounds of detention has a reasonable basis since such order is justiciable in Court. Md. Humayun Kabir Vs. State(1976) 28 DLR 259.

 

—Satisfaction must be based on reasonable grounds.

Ascertainment of reasonable grounds is essentially in the nature of a judicial or at least a quasi-judicial function. The Constitution guarantees that every citizen shall be dealt with strictly in accordance with law. In view of the constitutional provision, the executive also is required to exercise the power of making detention orders judicially. The right given to the detenu to makes representation makes all the more necessary to make detention order on reasonable and valid grounds sufficient to satisfy the judicial conscience. Md. Humayun Kabir Vs. State (1976) 28 DLR 259.

 

—Scope of the section

Section 491 of the Code of Criminal Procedure is a summary procedure for enquiry as to whether a person is illegally or improperly detained in public or private custody and if it !is so found the court would direct the release of such person. Dabiruddin Ahmed Vs. Dr. Chittaranjan Deb Nath (1984) 36 DLR (AD) 77.

 

—Application challenging detention order of a dctenue should be moved by detenue's relations or where there is no relation available, by person who is close to the detenue and knows all facts and circumstances of the case. Azizul Huq Vs. Province of East Pakistan (1968) 20 DLR 695.

 

—Meaning of the phrases "brought up before the court to be dealt with according to law." It is clear from the words "brought up before the court to be dealt with according to law" used in clause(a) of s. 491(1) means that when an act is done by the executive with the intention of misusing its powers the court has the jurisdiction to deal with the matter on application under section 491 of the Code. Bishal Deo Tewari Vs. The State (1975) 27 DLR 622.

 

S.491 : High Court may pass an order u/s 491 Cr.P.C. at any time. The phrases "illegally" or "improperly" used in the sub-section (b) of section 491 of the Code mean that when a person is not detained within the provisions of any law, the detention becomes an illegal detention. The scope of section 491 Cr.P.C. is wider than the scope of constitutional provison. (Article 102 of the Constitution). Syeda Rezia Begum Vs. Government of Bangladesh (1988) 40 DLR 210.

1870

Constitution of Pakistan, 1962 -29

Citation: (1975) 27 DLR 622, (1976) 28 DLR 48, 7 PLD(Lah)585, (1984) 36 DLR 178, (1960) 12 DLR 324 ; (1960) PLD (Dae) 783, (1956) 8 DLR (WP) 120, (1960) 12 DLR 823, (1956) 8 DLR (WP) 120, (1955) 7 DLR 216, (1950) 2 DLR 223, (1954) 6DLR(WPC)225, (1970) 22 DLR 109

Subject: Constitution of Pakistan

Delivery Date: 2018-09-17

S. 491(I)(b) : "Set at liberty" explained.

If the personal freedom of an individual is wrongly encroached by another the jurisdiction under section 491 will be immediately attracted. The use of the expression in clause(b) "be set at liberty" implies that the person for whom a relief is sought under section 491 of the Code of Criminal Procedure is under some sort of physical detention or physical restraint. The expression "set at liberty" clearly refers to any restraint put upon a person under the claim of authority by the executive or when a person is under any private custody. Bishal Deo Tewari Vs. The State (1975) 27 DLR 622.

— Personal liberty of a citizen for free movement can not be interfered with except by recourse to law. Bishal Deo Tewari Vs. The State (1975) 27 DLR 622.

 

—-When a person is required to report to the police before he moves from his residence, it is a curtailment of his liberty. Bishal Deo Tewari Vs. The State (1975) 27 DLR 622.

 

—Legality of a detention order when the order is challenged can be looked into by Court. Ranadhir Das Vs. Ministry ofHome(1976) 28 DLR 48.

 

S. 491(3): High Court can go into the question whether a warrant purporting to be issued under the Bengal State Prisoners Regulations, 1818, was truly a warrant authorised by the Regulations. 7 PLD(Lah)585.

 

S. 493—False statement or mis-representation if absent, sexual relation does not attract the provisions of S. 493 Cr. P. Code. Malekuddin Vs. State (1984) 36 DLR 178.

 

S. 494—Consent for withdrawal of a case must be given by the trying Court in an independent exercise of his judicial discretion. Muhammad Kasim Vs. A. Hamid Khan, (1966) 18 DLR(WP) 107.

 

—Public Prosecutor has option to withdraw from a prosecution with the Court's consent—Court need not give its reasons for allowing withdrawal in writing. Superintendent and Remembrancer of Legal Affairs, E. Pak. Vs. Aminul Huq and another. (1960) 12 DLR 324 ; (1960) PLD (Dae) 783.

 

Public Procecutor—Withdrawal from prosecution. Consent—Meaning of—Magistrate substituting discretion of the Government for his own allows withdrawal of the prosecution though himself did not feel satisfied with the reasons for withdrawal. Held : This is surrendering his own discretion to that of the executive Government and is improper.

 

Magistrate must give the consent judicially upon consideration of all relevant circumstances in the exercise of his own judicial discretion. Crown Vs. Babu (1956) 8 DLR (WP) 120.

 

—In the case of an order of discharge the accused can again be put on his trial on same facts. Abdul Jabbar Khan Vs. State (1960) 12 DLR 823.

 

—Duty for withdrawal of prosecution under sec. 494 rests with the Public Prosecutor alone. Crown Vs. Babu (1956) 8 DLR (WP) 120.

 

—It is improper for a Public Prosecutor to tell or show to a Magistrate the instructions of the District Magistrate for the withdrawal of a case and thereby bring improper pressure to bear upon him. Crown Vs. Babu (1956) 8 DLR(WP) 120.

 

-It is not incumbent on the Magistrate allowing a case to be withdrawn against an accused to record the grounds for such withdrawal under sec. 494, but it is desirable that the reasons for such withdrawal should be placed on record. Shachi Nandan Vs. Crown (1955) 7 DLR 216.

 

-It is not the practice of the High Court in its revisional jurisdiction to enquire into the reasons nor to, interfere with discretion exercised by a Court of competent jurisdiction which is not on the face of it arbitrary in allowing the withdrawal of a case under sec. 494. Sochi Nandan Vs. Crown (1955) 7 DLR 216.

-When the Public Prosecutor withdraws from the prosecution of an accused person under sec. 494, it does not require that the grounds allowing such withdrawal shall be recorded by the Cqurt though, it is desirable that the reasons thereof should be placed on record. To say that the recording of the grounds are essential is to overstate the law. Makhan Lai Shaha Vs. Crown (1950) 2 DLR 223.

 

—The language of sec. 494 makes it clear that the prosecution is of no material effect until and unless the Judge hearing the case gives consent to such withdrawal. If the Judge does not give his consent, the withdrawal of the Public Prosecutor from the Prosecution has no legal effect and the case has to proceed whether or not the Public Prosecutor wants to proceed with it. Zahid Hussain Vs. Crown (1954) 6DLR(WPC)225.

 

—Accused not legally discharged or pardoned cannot be examined as a witness—His evidence when given in such circumstances, wholly inadmissible. An accused not legally discharged or lawfully tendered pardon either under section 337 or 494 Cr. P.C. continues to be an accused in the clutches of law. He cannot be administered oath or examined as a witness in the case and his evidence is wholly inadmissible against the other accused persons. All the incidents of his being an accused having been present in the case, the mere omission to mention his name in the formal complaint will not take Matin out of the category of an accused. An accused is always an accused until be ceases to be an accused in accordance with law. He cannot, therefore, give evidence as a witness because he cannot be administered oath. Abdur Rashid Vs. The State (1970) 22 DLR 109.

 

—Withdrawal of a case on the prayer of the Public Prosecutor can be allowed when the Court in exercise of its own judicial discretion considers such withdrawal proper—Allowing prayer for withdrawal just as a matter of course is not in accordance with 'law. State on behalf of Golam All Howlader Vs. Ensab All Kazi, Yusuf Ali Kazi, (1968) 20 DLR 518.

 

—Court's consent, which is a requirement under section 494 of the Code is not necessary for withdrawal of a case before a Special Judge for trial under Act XL of 1958. When the Public Prosecutor, who is appointed as such under Act XL of 1958, under the direction of the Government, files an application for withdrawal of such a case pending before the Special Judge, the latter has no alternative but then and there to record an order of withdrawal and stop further proceeding. The investigating authority has no say in this matter. Any interference by the Investigating Authority concerning the matter of withdrawal is unwarranted. Taskinuddin Talukder Vs. The State, (1973) 25 DLR 174.

 

—Consent for withdrawal of a case must be given by the trying court in an independent exefcise of his judicial discretion. Muhammad Karim Vs. A Hamid Khan (1966) 18 DLR (WP) 107. –

 

—In warrant cases withdrawal is permissible only on the prayer of the Public Prosecutor. Abdul Hakim Vs. Lutfur Rahman (1974) 26 DLR 326. — Trying court gives permission for Withdrawal of a case in exercise of its independent judgment. Consent for withdrawal of a case must be given by the trying Court in exercise of its judicial discretion and that such consent must be free and not obtained by putting any pressure upon the Court. It is also not disputed that the Court should first satisfy itself whether any valid ground exists for permission of withdrawal of a case, since the order of withdrawal is a judicial order it must not be arbitrary and devoid of any cogent reason. Surab All Vs. State (1976) 28 DLR 386.

 

—Withdrawal of prosecution is permissible in a case pending under the Collaborators Order.

Since the Collaborators Order does not contain any provisions regarding withdrawal of a prosecution pending before Special Tribunal and since in view of Art.8(I) of the aforesaid Order the provisions of Criminal Procedure Code are applicable to the Collaborators Order, withdrawal of a case pending before a Tribunal in accordance with sec. 494 Cr. P.C. is allowable. Govinda Shet Jamadar Vs. The State (1975) 27 DLR. 67.

—Permission of withdrawal of prosecution may be given under Govt's direction, not exactly following the provision of sec. 494. It was contended that the order of withdrawal offended against the provisions of sec. 494 Cr. P.C. since permission was given not in exercise of the Tribunal's free consent, as required by section 494 but upon the direction of the Dy. Commissioner. Held : The instructions for the withdrawal of the case have not been issued by the District Magistrate but by the Ministry of Home Affairs. The Judge not being in any way subordinate to the Ministry of Home Affairs, which may have some policy considerations in its view or independent source of information impelling it to issue the instructions upon whose production the Court passed the impugned order. Govinda Shet Jamadar Vs. The State (1975) 27 DLR 67.

 

—Withdrawal from the prosecution-Scope of the section explained. Several accused on trial were charged with murder of 3 brothers during the time of liberation war of Bangladesh—Accused in defence set up the plea that they were Freedom Fighters (and as such exempted from prosecution) while holding the complainant party as the collaborators. Complainant denied it and charged at the same time that the accused persons were collaborators—Evidence is on record to show that the parties were at enmity with each other, Enquiry report by C.O. (at the instance of S.P.) records that no instances of collaboration were found in case of complainant party but there were some, instances of collaboration by the accused party— S.P. further got the opinion of the Public Prosecutor on the question of withdrawal of the case against the accused. The P.P. recommended withdrawal as per Govt, Circulars that cases against members of liberation forces during the war of liberation' when the Black Rule was on, be withdrawn. The S.P. after referring to the resolution passed by the Thana Awami League and P.P's recommendation directed the Court Sub-Inspector concerned to withdraw the case as suggested by the P.P. Thereupon the Trying Magistrate discharged the accused saying- "Seen the order of S.P. and the opinion of P.P, Heard Lawyer. C.S.I, has been asked to move for withdrawal of the case. Case is withdrawn u/s. 494 Cr. P.C."

 

-S.494     j

In the present case the opinion of the P.P. is 'full of equivocation' and was not clear on the point. Allegation by the complainant that the P.P. acted as a lawyer for some of the accused not considered by trying Magistrate. Trying Magistrate's action in discharging the accused, on the opinion of the P.P., without his own assessment of the facts and circumstances of the case disapproved. Held : Withdrawal unauthorised and not lawful. Abdur Rab Vs. Syed Ahmed (1974) 26 DLR 133.

 

-Special Tribunal under Act XVI of 1974 competent to accord consent for withdrawal of a case. Special Tribunal constituted under the Special Powers Act is competent to entertain an application filed by the Special Public Prosecutor to accord consent to the prayer for withdrawal of the case. Md. SherAli Vs. Special Tribunal (1977) 29 DLR 145.

 

—Special Tribunal exercises powers of a court of session. When exercising power u/s. 494 in allowing withdrawal --Effect of withdrawal before the charge is framed and after the charge is framed. The section 494 provides that if withdrawal is permitted before a charge has been framed the accused shall be discharged in respect of such offence or offences and if it is made after a charge has been framed or when under this Code no charge is required, the accused shall be acquitted in respect of such offence or offences. Therefore, an application under section 494 of the Code of Criminal Procedure is very much a part of the trial of-the case, and as such the Special Tribunal exercising all the powers of a Court of Session, is competent to allow disposal of the case as provided under section 494 of the Code. Md. Sher All Vs. Special Tribunal (1977) 29 DLR 145.

 

—A contention that the Special Tribunal gave consent of withdrawal without applying its mind. Held : such contention cannot be raised in an application under Article 102 of the Constitution. Md. Sher All Vs. Special Tribunal (1977) 29 DLR 145.

 

Withdrawal    from the prosecution Different aspects. Abroad comparison of the provisions of the Code

regarding the withdrawals shows that no uniform principle has been applied to them. On the contrary, we find that the Code has made a distinction in each category of cases; in summons cases instituted on private complaint, a trial before the High Court, and all other trials before the subordinate Courts, and the Magistrate. In the first category of cases, the withdrawal is completely under the control of the Magistrate and the complainant in order to withdraw must satisfy that there are sufficient grounds for withdrawal and, then if the Magistrate is satisfied On," the sufficiency of the grounds, he has a discretion to " allow the withdrawal of the complaint. Bakshu Mia Vs. Govt. of Bangladesh (1978) 30 DLR (SC) 228.

—Combination of prayer by the P.P. for withdrawal from prosecution and the consent of the Court allowing withdrawal make the order of withdrawal complete—Court's order on the question of withdrawal to be based on reasonable grounds-Recording of reasons by the Court even though not required is desirable to do so. Some materials on record for giving consent must exist. Bakshu Mia Vs. Govt. of Bangladesh (1978) 30 DLR (SC) 228.

 

—Withdrawal of prosecution—Courts to see that grounds given are not extraneous to justice—Section gives general executive discretion to the P.P. subject to the consent of the Court—Court not to determine anything judicially. Bakshu Mia Vs. Govt. of Bangladesh (1978) 30 DLR (SC) 228.

 

—Withdrawal of prosecution—Courts to be satisfied that the Public Prosecutor has not acted improperly. Court is to be satisfied that the executive function of Public  Prosecutor has  not been  improperly exercised, or it is not an attempt to interfere with the normal course of justice or for a collateral purpose. What is to be looked at is the substance rather than the form of the order of withdrawal. Court granting withdrawal  need not write a "speaking order" or a reasoned order. Bakshu Mia Vs. Govt. of Bangladesh (1978) 30 DLR (SC) 228.

 

It will depend upon the facts and circumstances of each case whether the ground for withdrawal was sufficient or not, and so no rigid rule or categorisation is possible, nor is it desirable. Abdul Wahab Talukdar Vs. State (1978) 30 DLR (SC) 278.

 

—Withdrawal order granted by the Magistrate does not contain any reason—Application for withdrawal stales that the accused are genuine freedom-fighters and the occurrence took place during liberation struggle—In that view of the matter, having regard to Govt's direction, the withdrawal order on charge of murder u/s.302/34, rape u/s.376,rioting with deadly weapon u/s. 148, theft in dwelling house u/s. 380, killing of cattle u/s. 429, etc. is quite valid. Abdul Wahab Talukdar Vs. State (1978) 30 DLR (SC) 278.

 

—Exercise of discretion regarding permission for withdrawal of a case is a judicial discretion to be based on reasonable grounds. Abdul Wahab Talukdar Vs. State (1978)30 DLR (SC) 278.

 

—In withdrawal petition Public Prosecutor is to furnish some materials before the court concerned— vide powers conferred upon the Public Prosecutor— Court is to look at the substance rather than the form of withdrawal. In that view the withdrawal order on charges under sections 302/34,376, 148, 147,448,380, 429 is a valid order. Abdul Wahab Talukdar Vs. State (1978) 30 DLR (SC) 278.

 

—Memo of the S.P. and the Govt's order are not available—there being nothing on record to show that the accused were not freedom-fighters coupled with the fact that the occurrence took place during liberation struggle—withdrawal order valid. Abdul Wahab Talukdar Vs. State (1978)) 30 DLR (SC) 278.

 

—In the withdrawal petition matters that require consideration by the Court—Public Prosecutor gave two grounds for withdrawal: (I) Accused are freedom fighters (ii) occurrence took place during liberation struggle. Though the Magistrate gave no reason for granting withdrawal the order is sustainable in Law. Abdul Wahab Talukdar Vs. State (1978) 30 DLR (SC) 278.

 

—Effect of withdrawal of pending criminal case.

Effect of withdrawal of a criminal case u/s 494 of Cr. P.C. (in the instant case after trial started, that is, after examination of the accused u/s. 242 of Cr. P.C) amounts to acquittal and fresh trial on the self- same charge, as per section 403 of Cr.P.C it is barred. Habibur Rahman Vs. State (1982) 34 DLR (AD) 55.

 

—After withdrawal of prosecution the accused cannot be implicated any further. The High Court Division in this case has made Ihe following observations:

 

"If during the proceeding of the trial against the rest of the accused persons evidence does forthcome involving the complicity of the accused persons against whom case has been withdrawn, in the incident and occurrence of the said case, there would be no legal bar in proceeding against such persons in accordance with law."

 

Held : Whenever an order of withdrawal is made under section 494 of the Code the section itself provides consequence flowing therefrom and as such the observation made above is uncalled for as it is likely to create some wrong impression in the mind of the trial Court and so it should not be taken note of. Sikandar All Vs. State (1979) 31 DLR (AD) 135.

 

—Court can see that the case was not mala fide or made for collateral purpose-Objection as to mala fide must be based on facts—Government decision at a high level cannot be treated lightly. Mere assertion of mala fide will not do, but there must be assertion of facts constituting mala fide and the onus is on the person who makes the allegation. The decision at the Government level should not be taken lightly and there must be cogent facts and compelling reasons before the Court inducing it to act otherwise. Sikandar Ali Vs. State (1979) 31 DLR(AD) 135.

 

—Withdrawal of prosecution at the instance of the Government—Court's consent thereto to be based on materials showing cogent grounds of the Government's decision of withdrawal taken at the highest level—the Court without question should acquiesce in that. Sikandar Ali Vs. Stale. (1979) 31 DLR (AD) 135.

 

—Decision of the District Control Cell presided over by the Deputy Commissioner for withdrawal of the prosecution against the accused is sufficient to enable the Magistrate to allow withdrawal of prosecution. Abul Hossain Vs. Tayab All (1980) 32 DLR271.

 

-Section 494 Cr. P.C. deals with withdrawal from prosecution, by the Public Prosecutor but 'the withdrawal is subject to the consent of the Court.

The Government decision to withdraw the case was couched in the following language: 'After careful consideration the Government have been pleased to withdraw Rajapur P.S. Case against accused (I) Md. Yunus Jamadder, and (2) Syed Matiur Rahman,' as these two accused persons are freedom-fighters, : Unless it is shown by the Government that its decision to withdraw a case from prosecution relates to an act done in connection with liberation struggle, no ground is made out to enable the court to allow the withdrawal of the prosecution. Syed Matiur Rahman Vs. State (1983) 35 DLR 329.

 

Section 494 : Withdrawal from prosecution of any person (before charge is framed or after charge is framed) before pronouncement of the judgment-effect of—Words "consent of the Court" occurring in S. 494 Cr.P.C.—Interpretation of—Court is to see whether the Public Prosecutor who has a duty u/s 494 Cr.P.C. to file an application for withdrawal from prosecution has in fact placed cogent and relevant materials for consideration of a Court of law—The Court granting "consent" must not accord its consent as a matter of course but must apply its mind to the ground taken in the application for withdrawal by the Public Prosecutor. Abdul Hakim Chowdhury Vs. Ruhul Amin & State ('1988) 40 DLR 259.

-Consent being one of a Court of law, the Court must consider the ground for its satisfaction for according consent and also for the higher Court to examine the propriety and legality of the order. Abdul Hakim Chowdhury Vs. Ruhul Amin & State CMS) 40 DLR 259.

 

-Trial Court's passing of the impugned order of withdrawal as a matter of course without any application of judicial mind to any material on record. Abdul Hakim Chowdhury Vs. Ruhul Amin & State C1988) 40 DLR 259.

 

—The terms "consent" is a legal term and is? of wider import which means "acquiesce in" or "agree to". Abdul Hakim Chowdhury Vs. Ruhul Amin & State ("1988) 40 DLR 259.

 

—Withdrawal of criminal case—When illegal and improper.

Sub-Divisional Magistrate who passed the impugned order has not cared even to read the relevant law. The question of consent will arise only when the machinery is set in motion by way of an application from the prosecution which in the instant case was not there. Furthermore, it was highly improper and unbecoming on the part of the Sub-Divisional Magistrate to have passed a judicial order upon a communication sent by the Superintendent of Police to the Court Inspector. The impugned order is ex-fade illegal and cannot be sustained in law. Chandra Banu Vs. State. (1983) 35 DLR 70.

 

—The direction given by the Govt. for withdrawal of the prosecution not having disclosed any reason, withdrawal can not be permitted. Shaikh Keramat All Vs. State. (1983) 35 DLR 355.

 

—There being nothing to show that the accused was a freedom fighter, or the complainant a Razakar, withdrawal order not justified. Abdul Mannan Talukder Vs. State. (1983) 35 DLR 202.

 

—Withdrawal of the prosecution cannot be ordered solely on the basis of Government Circular—It must.be established that the accused was a freedom fighter who is being harassed by anti-liberatin forces-. Abdul Mannan Talukder Vs. State. (1983) 35 DLR 202.

 

—Court's order of withdrawal is not to be given as a matter of course.

It is well settled that according of consent is not a mechanical process but a judicial consent to be exercised judiciously with due care and caution after proper application of mind. Abdul Mannan Talukder Vs. State (1983) 35 DLR 202.

 

—Withdrawal of prosecution—Principle laid down by the Appellate Division (in DLR Volumes 30, 31 and 35) to be followed in the matter of allowing withdrawal from prosecution by the Public Prosecutor, at the instance of the Government. Supreme Court gave further consideration as to the extent and scope of the judicial function in exercise of the jurisdiction in according or refusing consent to the prayer for withdrawal, under section 494 of the Code of Criminal Procedure in the cases of Bakshu Mia and Abdul Wahab Talukder reported in 30 DLR (SC) 228 and 278 respectively. We say with respect that the principles enunciated therein continue to govern the field, and neither the decision reported in 31 DLR (A.D.) 135 nor the one reported in 35 DLR(AD) 329 can be said to be a departure from the principles enunciated in the aforesaid cases, In 31 DLR case reference was made to the principles enunciated in the cases reported in 30 DLR and something more has been said in the case of a Government decision which is taken at the highest level of administration. It has been said that such a decision is prima facie a good ground for according consent to withdraw a criminal case.

 

It has further been held that the Court is not required to sit on judgment on the decision of the Government. It has immediately been qualified by holding that it is true that it is up to the court to see that the decision of the Government was not mala fide or made for collateral purpose. In the decision reported in 35 DLR upon which much reliance has .been placed on behalf of the petitioner it is nowhere said that the principles enunciated in the earlier decisions were in any manner incorrect. All that has been said is that consent mentioned in section 494 of the Code of Criminal Procedure is not to be given mechanically but the court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides about withdrawal of a case. The rationale of the decision, in our opinion is in no way different from what has been held in the two cases reported in 30 D.L.R. where fullest consideration has been given to the subject. It has been held in those cases (30 DLR (SC) 228 and 278) that judicial function of the Court is to be understood in this context (referred to above in the said judgment) and will therefore mean that the Court is to be satisfied that the executive function of the Public Prosecutor has not been improperly exercised or it is not an- attempt to interfere with the normal course of justice or for a collateral purpose. Md. Habibur Rahman Vs. Mosfiqur Rahman (1985) 37 DLR 306.

 

—Accord of consent by the Court must be based on some reasonable grounds. Md. Habibur Rahman Vs. Mosfiqur Rahman (1985) 37 DLR 306.

 

—Discretion of the Court in the matter of according or refusing consent must be judicially exercised and not mechanically. Md. Habibur Rahman Vs. Mosfiqur Rahman (1985) 37 DLR 306. ,'

 

—Court is to determine the correctness or otherwise of the grounds upon which prayer for withdrawal is sought. Md. Habibur Rahman Vs. Mosfiqur Rahman (1985) 37 DLR 306.

 

—Court's function in according or refusing permission to withdraw vis-a-vis decision of the Government at the highest level.

When the Government at its highest level decides on the basis of the record of the case that the evidence in the case is weak and instructs the Public Prosecutor to withdraw the case primarily on that ground, it is not ordinarily required of the court to j refuse consent for withdrawal, unless, of course, any mala fide is alleged and found to be proved upon the materials on record in {he said Government decision, It will be going too far to say that in such a case the court can and ought to insist upon to examine the evidence itself in order to find out whether the case is weak or strong on evidence. 'Md. Habibur Rahmn Vs. Mosfiqur Rahman (1985) 37 DLR 306.

 

—Ground given by the Government as to the absence of animus cannot be said to be unsubstantial. Md. Habibur Rahman Vs. Mosfiqur Rahman (1985) 37 DLR 306.

 

—Public Prosecutor alone is competent to file an application for withdrawal from prosecuting a case. Tofayel Ahmed Vs. Sk. Aminuddin.(1986) 38 DLR(AD) 282.

 

Magistrate allowing withdrawal on the basis of an order of the Government forwarded through Dy. Commissioner is illegal. Tofayel Ahmed Vs. Sk. Aminuddin (1986) 38 DLR (AD) 282.

 

—Withdrawal from the prosecution—Public Prosecalor must satisfy the court as to, the reasons and circumstances justifying the withdrawal of the prosecution.—Mere Government order directing withdrawal without valid grounds not enough to pass an order of withdrawal by the Court. K.A.T.M. Amanullah Vs. Gulam Sultan (1984) 36 DLR 131.

 

—Consent of the trying judge is not to be given mechanically ; the court is to examine the materials on which the Government decides withdrawal of case—Court can see if the Government order was malaYide or for collateral purpose. Sa'yed Matiur Rahman Vs. State. (1983) 35 DLR (AD) 329.

 

S.494 cl.(a)—Order of withdrawal u/s. 494 cl.{a) is a discharge order and fresh prosecution on the same facts competent. Surab All Vs. State (1976) 28 DLR 386.

S.494(a) & st403,—In the case of an order of discharge the accused can again be put on his trial on same facts. Abdul Jabbar Khan Vs. State (1960) 12 DLR 823.

 

S. 494 (b)—Withdrawal of summons cases results in the acquittal of the accused, even though the word used is "discharged" as such cases do not require framing of charge. Trial of a case as summons case under the procedure laid down in Chapter XX of the Cr. P. Code can only end, in case of withdrawal of complainant in acquittal, even though the trying Magistrate has used the word "discharge".

 

As no charge is to be framed in a case following the procedure laid down in "Chapter XX of the Cr. P.C., the words "where under this Code no charge is required he shall be acquitted in respect of such offence or offences" in section 494(b) of the Code clearly indicate that the Magistrate could only make in order of acquittal. Md. Mohsinuddin Ahmed Vs. State (1962) 14 DLR 263 (ILR 12 Mad. 35 rel,)

 

—Cases are committed for trial by the Sessions Court by the Committing Court after charge is framed—Trial commences on the charge so framed (except in the cases coming under section 226, Cr.P.C.) and when Public Prosecutor withdraws trom the case c-ven though before the commencement of trial, the charge being already there, it amounts to acquittal under clause (b) of sec. 494. Abdul Lalif Vs. Abdul Gafur (1964). 16 DLR 310.

 

S.495(I) (2)—Government Advocate who was neither in charge of the case nor entered appearance to withdraw the case, cannot under the law withdraw from the prosecution of the accused by simply writing a Yadasht to the trying Magistrate. Pir Baksh Vs. Ghulam Rasul (1955) 7 DLR (WPC) 4.

1871

Constitution of Pakistan, 1962-3

Citation: (1975) 27DLR 111, (1967) 19 DLR (SC) 426, (1984) 36 DLR (AD) 58, (1975) 27 DLR 342, (1978) 30 DLR (SC) 38, (1977)29 DLR 427, 9 DLR (WP) 54, (1966) 18 DLR 230, (1973) 25 DLR 232,S. 190, (1962) 14 DLR (WP) 21 = (1962) PLD (Lah.) 405, (1962) 14 DLR 198

Subject: Constitution of Pakistan

Delivery Date: 2018-09-03

Ss. 173 and 190 :  "Cognizance"  what the word connotes, explained. It seems clear that the word 'cognizance' (in sections 173 and 190 of the Code) refers to a stage of mental condition at which a Magistrate or a Judge decides upon taking necessary steps to initiate a judicial proceeding against a person accused of an offence for placing him on trial with a vie.w to determine the truth or otherwise of the accusation.

 

Applying that test to the facts of the present case it appears that stage was reached on 12.8.68 when the learned Senior Special Judge decided to initiate proceedings by obtaining sanction for prosecution of the petitioner. Khorshed Alam Vs. State (1975) 27DLR 111.

showed that so far as the two persons complained against were concerned no evidence was available against them and thus put their names in Col.2 of the challan. The Magistrate on reading said re

—Ss.173 and 190(b) : Police in this case following the requirements of section 173. of the Code submitted a report to the Magistrate in which the police port disagreed and summoned the 2 accuseds under clause (b) of section 190 of the Code. Question arose whether ignoring the police report submitted under section 173, the Magistrate would take cognizance of an offence under section 190(b) of the Code.

 

Held : Sub-section (3) of section 173 makes it clear that the Magistrate may or may not agree with a police report. There is therefore, nothing wrong if the Magistrate proceeds under S. 190 of the Code and starts proce/e^lings against persons whose names "have been placed in column 2 of the challan. Falak Sk. and another Vs. State (1967) 19 DLR (SC) 426.

 

Ss.173, 202Procedure followed generally by the Magistrate, when police submits final report, is to direct further investigation by the police— When naraji petition is filed against police final report, the Magistrate may take cognizance after examination of the complainant or may follow the procedure under S.202. Abdus Salam Master Vs. The State (1984) 36 DLR (AD) 58.

 

Ss. 173 and 494Further _ investigation is not the same thing as reinvestigation—Re-investigation will result in cancellation of the charge-sheet already submitted but such a course not permitted by law—Charge-sheet against a wrong person can be remedied by withdrawal of the case u/s.494. State Vs. Abul Kashem (1975) 27 DLR 342.

Ss.l73(I) and 190(b)Before the Court decides to take cognizance of an offence and takes steps to bring the alleged Offenders to trial, it must be satisfied that the allegations contained in the report, if proved would constitute an offence and establish that the accused were the offenders. Abdul All Vs. State (1978) 30 DLR (SC) 38.

 

S.173(2)(3)The report referred to in sub­section (I) of S.173, shall be submitted through the superior police officer and u/s. 173(3) the Magistrate may order discharge of the bond executed by the accused—Magistrate to decide whether he wilftake cognizance of the offence u/s.!90(I)(b). Abdul Huq Vs. State (1977)29 DLR 427.

 

Ss.l74 & 176Provincial Government has no power to order an enquiry into .the cause of death of a person after an enquiry had already been held by a Magistrate. Proceedings of the Magistrate holding the inquiry is only open to revision by the High Court. Khuda Baksh Vs. Province of the West Pakistan 9 DLR (WP) 54.

 

S.177: Magistrate trying a case not within his territorial jurisdiction—Trial illegal.

Held: The contracting of the second marriage in the present case having taken place at Dacca, the offence was thus committed within the jurisdiction of the Magistrate of Dacca having regard to the provisions of section 177, Cr.P.Code. Therefore the learned Magistrate of the First Class of Manikganj has no jurisdiction to try the case out of which Revision Case No.261 of 1964 has arisen. Abu Sofian Vs. Nurjahan Begum, (1966) 18 DLR 230.

 

—Trial-^urisdiction-A person found in possession of stolen property can be tried either by the Court within whose jurisdiction the theft was committed or by the Court .within whose jurisdiction the property was found. IPLD(Bal). 15.

 

8.185(2) : The jurisdiction which the High Court exercises under sub-section (2) of S.185 Cr.P.Code is one of great responsibility. The steps under this sub-section are taken only for the sake of convenience of the parties and desirability of enquiring into or trying a case in one Court or another. Without materials the High Court is not in a position to interfere with such matter. Hashim Ali Vs. The State, (1973) 25 DLR 232.

 

S. 190: Whether when a chalan is received by a Magistrate he takes cognizance of the ca"se—It would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a Police chalan has been presented before him. The Police chalan by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to siart the proceeding.

 

In the case of an incomplete challan, although the Magistrate could start the trial, if he keeps it wailing- until another report should come or until whatever is wanting should be made up he; clearly dees not take cognizance of the offence, ft, therefore, the^case is at that siagc and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case.

 

This power is inherent in section 173 read with section 190 of the Code of Criminal Procedure though the language of sub-section (3) does not directly apply to the case. Wazir Vs. State (1962) 14 DLR (WP) 21 = (1962) PLD (Lah.) 405.

 

—paving regard to the provisions of section 4(h) read with section 190—the complaint for thp offence of cheating by a person Other than person cheated will be valid in law and the proposition laid down in 12 DLR 178 was too broadly stated. Jagadish Chandra Roy Vs. Joynarayan Biswas. (1962) 14 DLR 198.

—Right of a private individual asking Court for holding enquiry as against person not challaned by Police—Police submitted challan as against certain persons—A private individual is entitled to ask the Court to hold a preliminary inquiry in regard to the same incident and on same facts as against some other persons not challaned by the Police and, thereafter, take cognizance of the offence as against them—Such steps cannot be condemned as amounting to multiplicity of proceedings. Quazi Faizullah Vs. State(1965) 17 DLR (WP) 102.

 

—Taking cognizance of an offence upon a petition filed by the Court Inspector but independently of the Inspector's petition—The Court Inspector submitted an application before the Magistrate Co summon the accused persons to take their trial for offence under sections 307/114 P.P.C. The Magistrate thereupon went through the evidence on record against the accused and upon that issued orders summoning them under sections 307/114 P.P.Code and it was thereupon contended that the Magistrate acted without jurisdiction as the sbmmoning does not come under any of the clauses of section 190 Cr.P.Code.

 

Held: Where Magistrate has not acted on the petition of the Court Inspector but has come to his own decision on perusal of the record, he is competent to take.cognizance of an offence under section 190 of the Code. A Wadud Khondaker Vs. State (1964) 16 DLR 255.

 

—Refusal by the Magistrate or the Sessions Court to summon accused is not a bar to summon him later on—It was urged that when the Magistrate who held the enquiry under chapter XVIII of the Code of Criminal Procedure, refused to summon the accused on a prayer made by the Court Inspector, and when thai: order was interfered with by the Sessions Judge in revision, the Sub-divisional Magistrate could not assume jurisdiction to sit in judgment again over the same matter and issue summons against the accused.

Held: The previous order of the Magistrate holding the enquiry under Chapter XVIII of the Code passed by the Sessions Judge in revision cannot in law constitute a bar against the cognizance taken by the Sub-Divisional Magistrate in the present instance. A Wadud Khondaker Vs. State (1964) 16 DLR 255.

 

—Taking   cognizance   of  an   offence—

Taking cognizance of an .offence as distinguished from taking cognizance of an offender. It cannot be held that once cognizance of an offence is taken under section 190, the section has no application to a person who was not an accused at the start of the trial but was added as an accused in the course of the trial. Proceedings under section 190 not only include proceedings in respect of an offence but also against the offenders, (majority view) Abdus Sattar Molla Vs. Crown (1953) 5 DLR (FC) 14 .

 

—As the Code of Criminal Procedure provides for taking cognizance of an offence and not of any individual offender, the Magistrate who takes cognizance of the offence can proceed against every person who may be proved to be concerned in the offence irrespective of his name being specifically mentioned or not., (minority view). Abdus Sattar Molla Vs. Crown 5 DLR (FC) 14.

 

—When there is no police-report or police evidence against an accused person who appeared before the Court because his name was mentioned in the F.I.R, the Magistrate's act granting him bail- on his own petition did not amount to taking cognizance of an offence against him. Abdus Sattar Molla Vs. Crown 5 DLR (FC) 14.

 

. —Magistrate takes cognizance of an offence when he applies his mind to the suspected commission of the offence. 1 PLD (Bal.) 17.

 

—When a Magistrate issues summons to a person mentioned in column No.2 of charge-sheet he is deemed to be acting under clause (c) of sub­section (I) of section 190 and is bound to comply with provisions of section 190 and to inform the accused that he is entitled to have the case tried by another Magistrate. Mirza Md. Abbas Vs. State (1964) 16 DLR' (W.P.) 34.

—Cognizance of offence—Receipt of a copy of the F.I.R. by the Magistrate does not amount to the taking of cognizance in the case by him—Some other step or act is further needed to show that the Magistrate has taken the cognizance. Muhammad Hayat Vs. The Chief Settlement Officer, (1971) 23 DLR (Lah.) 34.

 

1872

Constitution of Pakistan, 1962 -30

Citation: (1975) 27DLR 665, (1976) 28 DLR' (WP) 1 &2, (1988) 40 DLR 506, (1952) 4 DLR 352, (1970) 22 DLR (WP) 145, (1973) 25 DLR 119, (1970) 22 DLR (WP)175, (1981) 33 DLR 146, 1954 PLD (Pesh.) 9, (1976) 28 DLR 20, (1961) 13 DLR 521 : 1962 PLD (Dae) 205,(1957)

Subject: Constitution of Pakistan

Delivery Date: 2018-09-18

Session Judge

The power of a Court of Sessions under section 498 Cr.P.C. is to be read along with the power of a Court of Sessions under sub-section (5) of section 497 Cr.P.C. The aforesaid provisions read together empowers a Court of Session to cancel any bail earlier granted by the said Court. Abdul Motaleb Vs. State (1975) 27DLR 665.

 

— Bail in a murder charge—Grounds sought for bail is undue delay in disposal of the commitment proceedings—Delay does not amount to an abuse of [he process of law and not a ground for bail. A bail petitioa in a murder case was moved for granting bail, the ground made out in the petition was undue delay in disposal of the commitment proceedings by the Committing Court.

 

Held : It is true that in such cases the accused persons if they are not responsible for the delay, suffer a prolonged detention unnecessarily. Delay in disposal of criminal cases have now become proverbial including even in a murder case where delays extended to several years. Dara Vs. The State, (1976) 28 DLR' (WP) 1 &2.

 

Ss. 498 & 497, Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. liaqat Sharif Vs. State, (1988) 40 DLR 506.

 

S.499—Imposing of conditions where granting bail.

On the languages of section 499, Sessions Judge and Magistrates have no power whatever to impose any condition at all when they grant bail. Neither the Sessions Judge nor the Magistrate is competent to accept any conditions which an accused person may like to suggest himself. Lakhi Narayan Vs. Crown, (1952) 4 DLR 352.

 

—Under section 499, the Court can grant bail on condition that the person shall attend at the time and place mentioned in the bail-bond before the police but would not cover such conditions that an accused shall attend a local police-station twice daily, in the morning and in the evening, to give hajira before the police-officer. Lakhi Narayan Vs. Crown, (1952) 4 DLR 352.

 

—Bail on cash-deposit—Section 499 contemplates the execution of a bond with sureties and not a cash deposit. The provision in section 513 of the Code of Criminal Procedure to the effect that "when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond," was enacted in the interest of persons who, because they may be strangers in the locality or for some other reasons, are not in a position to arrange for bail or able to offer sureties. Lakhi Narayan Vs. Crown, (1952) 4 DLR 352.

 

—Execution of bond by the surety is a simple contract executed between the court and the surety whereby the custody of the persons is given to him and for his production in the Court according to the terms of the bond. It is, therefore, implied that such surety must be a person competent to contract and that further he must be also possessed of the amount of the bond before he can be regarded as a fit person to stand surety. Md. Salim Vs. The State, (1970) 22 DLR (WP) 145.

 

—The word "sufficient" as prefixed before the word "surety" in section 499 CnP.C., would include not only the solvency of the person offering himself as the surety but also his fitness to enter into a contract under the surety bond. Md. Salim Vs. The State. (1970) 22 DLR (WP) 145.

 

—Magistrate granting bail should verify solvency of surety himself and not act upon the advice of others.

In pursuance of circulars issued by the District Magistrate that the solvency of the surety in a bail bond exceeding Rs. 3,0007- should be verified by the City Deputy Collector, the Magistrate referred the applicant's case for such verification to the City Deputy Collector.

 

Held : When a person offers to stand surety for another and submits his documents for verification it is for the Court to determine his solvency and his fitness for standing surety for that person. The learned Magistrate cannot act on the opinion of another authority, such as, the City Deputy Collector. The judicial function necessarily implies that it must be his own judgment and not that, he could act otherwise. Therefore, any order passed on the basis of these circulars is illegal and is of no legal effect as it finds no support from ,any provision of the Code of Criminal  Procedure. Md. Salim Vs. The State, (1970) 22 DLR (WP) 145.

 

—Grant of bail upon the fulfilment of conditions embodied in bail bond—not valid in law. Whatever the position may be with regard to the power of a court in requiring an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant of bail, it seems fairly clear on the language employed by sec. 499, Cr.P.C. that such a conditiion cannot be incorporated in a bail surety bond itself. Abdus Sukifr Vs. State, (1973) 25 DLR 119.

 

—Bail Bond : If obligation to appear in the transferee court is not specified in the bond, the surety cannot be penalised for failure of the accused to appear in that court.

 

The bond contains no provision binding the surety to produce the accused in a Court other than the Court mentioned in the bond. The terms of the bond being penal must be construed strictly. The contingency that the case may be transferred to some other Court was never contemplated by the parties nor any such condition was imposed in the bond. If the obligation to appear in the Court to which the case may be transferred has not been specified in the bond, the surety cannot be penalised for the failure of the accused to appear in that Court. Haji Abdul Ghani Vs. The State, (1970) 22 DLR (WP)175.

 

-Forfeiture of bail bond—No Court other than the one before which the accused was bound by the bond to appear can forfeit the bond. Haji Abdul Ghani Vs. The State, (1970) 22 DLR (WP)175.

 

Ss.  499  and  513 sections, explained. Provisions of these The language of section 499 of the CrP.Code makes it abundantly clear that what is required is the furnishing of a personal bond by the accused and a bond by one or more sufficient sureties for an amount fixed to the satisfaction of the authority of the court concerned. Section 513 appears to be an enabling provision whereby the Court may permit an accused to deposit a sum of money in lieu of executing a personal bond and giving a surety, of some persons. From a plain reading, section 513 does not appear to authorise a court to ask for cash security. R.K.M. Reza Vs. State, (1981) 33 DLR 146.

 

—The word "permit" occurring in section 513 presupposes a prayer from the accused and did not contemplate imposition of cash security as a condition by the court on its own. Section 499 is a substantive section which empowers the court to release a person on bail,and this section speaks of a person being released on bail either on his own bond or on a bond for such sum of money as the court thinks sufficient. R.K.M. Reza Vs. State, (1981) 33 DLR 146.

 

S.506—Power of subordinate Magistrate to apply for issue of commissions—Commission to examine witness— Commission to examine witness issued direct by Magistrate—Statement purporting to be doctor's evidence taken on commission simply saying "Yes" to two interrogatories without any detailed reference to injuries, etc. Held : Doctor not properly examined and consequently the record was incomplete—Re-trial ordered. 1954 PLD (Pesh.) 9.

 

—Examination of an important prosecution witness on commission in a criminal case when can be permitted. Pardanashin lady objecting appearance in court must satisfy the court- that she observes pardah. The judicial authorities have stressed the desirability of examining important witnesses in court to enable it to note their demeanour and assess their credibility. Discretion to issue a commission however should be "sparingly exercised, and only in cases of real hardship and inconvenience." Although the word 'pardah1 does not occur in section 506, nevertheless it has been held in several cases that the /ord "inconvenience' may include inconvenience to a witness which includes pardah in case of ladies who observed the same. As such, any one claiming to be a pardanashin lady must satisfy the court that she observes pardah. Begum Nurunnessa Reza Vs. Akhlaque Rahman (1976) 28 DLR 20.

 

S.509 : Medical witness when easily available for examination—Provision of section 509 should not be preferred. Arshad Master Vs. State (1961) 13 DLR 521 : 1962 PLD (Dae) 205.

 

—Medical evidence—when can be and when cannot be tendered. Section 509 is designed to allow evidence given by Medical Officer to be put in at the trial in their absence. But if the medical officer is summoned as a witness, he must be examined as any other witness and his statement in the lower Court should not be put in under section 509. Sajaluddin Vs. State (1957)9 PLR'225.

 

—Section 509 is designed to allow evidence given by medical officers to be put in .at the trial in their absence. But if the medical officer is summoned as witness, he must be examined as any other witness and his statement in the lower Court should not be put in under section 509 by a Court of Sessions. Fazar Vs. Crown (1952) 4 DLR 99.

 

—Section 509 only applies if the medical officer concerned is not summoned as a witness in the Court of Sessions. If he is summoned, then the evidence ought not to be put in under section 509 of the Code and the Court should proceed to examine him regularly exactly as any other witness in the case. Crown Vs. A. Barik (1950) 2 DLR 120.

 

—Section 509 clearly applies only when the Civil Surgeon or other medical witness is not called as a witness in the sessions trial. If the doctor is called as a witness in the Sessions Court, then his evidence must be recorded in extenso just as the evidence of any other witness in the case and the Courts are not following the correct procedure when [hey lift from the record the evidence given by the doctor in the committing Court and place it bodily in ihe Sessions Court under section 509, Cr.P.C. Huiqffar Sarkar Vs. Crown (1950) 2 DLR 190.

 

—The prosecution brought on the record of the Court of Sessions the depositions made by the doctors who had performed post-mortem examination on the dead body of the deceased and examined her injuries before her death. In the Court of Session, the doctors were examined as witnesses, but only on points which were not clear from the depositions made by them in the Court of the committing Magistrate. Held : These depositions are admissible in law. All Vs. Crown (1953) 5 DLR

 

—Medical evidence if inadmissible— If the intention of the Legislature were that the deposition of a medical witness taken in the Court of the committing Magistrate became inadmissible in evidence if the witness appeared in the Court of Session, one would have expected the.Legislature to make that clear by using the word "if" instead of "although" occuring at the end of sub-section (I) of section 509, Cr.P.C. All Vs. Crown (1953) 5 DLR (WP). 7.

 

The Medical Officer who examined the injuries of the injured and the deceased was not produced before the Sessions Court nor was his statement recorded by the Committing Magistrate tendered in evidence. It seems that the Medical Officer concerned had been examined in the Court of the Committing Magistrate but the necessary certificate on the deposition was not appended by the Magistrate. This defect however was not incurable and could be removed by leading necessary oral evidence. Arbab Vs. State PLD. 1957 Karachi 170; PLR 1957 (2) (WP) 668, (DB).

 

S.509A : Section 509A was introduced by Ordinance 24 of 1982 on 21.8.82. — The post mortem report by the doctor being of a date earlier thereto it is not admissible in evidence on the basis of provisions of S.509A, Nayan Vs. The State (1985) 37 DLR 237.

 

—Post mortem reports when can be used as evidence in case when conditions arc not fulfilled in a case, the post mortem report can not be used in evidence. Under section 509A, Cr.P.Code the report of post-mortem examination may be used as evidence in the following conditions : (I) if the medical officer who made the report is dead or (2) if he is incapable of giving evidence or (3) if he is beyond the limits of Bangladesh and his attendance cannot be procured without an amount of delay, expense or inconvenience, which, under the circumstance of the case, would be unreasonable. State Vs. Mokbul Hossain (1985) 37 DLR 156.

 

—Post-mortem report is an admissible evidence when three requirements laid down in the section are satisfied. Ezahar Sepai Vs. The State (1988) 40 DLR 177.

 

—The post-mortem report was not a substantive evidence before insertion of S. 509A in the Code of Criminal Procedure by Ordinance No. 24 of 1982. Ezahar Sepai Vs. The State (1988) 40 DLR177.

 

—Non-examination of the doctor was not fatal for the Prosecution Case. Conviction can be based on the evidence of a solitary witness if the testimony is not tainted with suspicion. Ezahar Sepai Vs. The State (1988) 40 DLR 177.

 

—Ext. 13. post-mortem report of the deceased has been admitted into evidence in utter violation of the mandatory provisions of Section 509A. The doctor who held the post-mortem on each of the dead bodies was not examined during the trial. Md. All Haider Vs. The Stale (1988) 40 DLR 97.

 

S.510 : Chemical Examiner, report of —Report of the Chemical Examiner— Reference to the case number in it is a part of the report.

Prom the report of the Chemical Examiner in the case, the Court found, that the report which is evidence of its own contents under section 510, Cr.P.C., proved that the parcel of the hatchet related to the present case which contained the number and the date of the F.I.R. of the case and that the sealing of the parcel was done in compliance with the rules.

 

Held : This was sufficient to establish the identity of the hatchet. (1956) 8 DLR (FC) 40.

 

—Chemical Examiner's report should not be accepted as proof of the death of a person (in this case by arsenic poisoning) or in the case of a lesser charge when not tendered on path and not tested by cross-examination. Montazuddin Vs. State (1957) 9 DLR 564.

—Chemical Examiner giving report should be available for cross-examination.

Held : If a Court wishes to rely upon the report of an expert he should be produced and his evidence tested by examination and cross-examination in open Court; and unless this is done the report does not by itself become evidence in the case. Moshiar Rahman Vs. State (1966) 18 DLR 216.

 

—Report of Chemical Examiner—Its evidentiary value in a case of charge of murder by poisoning,

In order to remove any suspicion it was not only the duty of the prosecution but it was essential for them to explain the inordinate delay between the post mortem examination and the report of the Chemical Examiner and to further show that during this long period of one year the articles were in safe custody without any chance of their being tampered with. It is of the greatest importance in a case of. poisoning that the substance found by the Chemical Examiner must be connected with or traced back to the articles removed or taken from the dead body of the person in the case. It is well settled that if a fact is intended to be relied on by the prosecution, it must be proved with reasonable certainty, and if such fact can only be established by proof of some subordinate facts, each of these subordinate facts must be proved with the same degree of certainty as is required for the proof of main fact. The omission to prove the necessary link may break the whole chain and thus deprive the prosecution of trie opportunity of proving a valuable circumstantial evidence. In the case of poisoning the onus clearly rests on the prosecution to prove that an article analysed by the Chemical Examiner was actually the article sent to him for analysis in the case under trial in the same way as it is necessary for the prosecution to prove that a body sent for post-mortem examination was really the dead body of the person referred to in the case under trial. The court must be satisfied that the connecting links necessary to prove the report of the post-mortem examination or .the chemical examination have been fully and duly established. It is true that the report of the Chemical Examiner is a piece of evidence that does not require any formal proof but it must be tendered in evidence and used as such to enable the accused to have an opportunity of assailing it, if he can. When the guilt or innocence of the accused rests solely on the opinion of the expert, namely the Chemical Examiner, it is not only desirable but also necessary to examine the Chemical Examiner in Court to enable the accused to cross-examine the expert which was of course done in the instant .case.

In the case of a murder by poison it is not enough for the Chemical Examiner merely to say that except aconite or arsenic no other poison was detected. He must also stole the grounds on which he arrived at that opinion. A perfunctory report may well lead to miscarriage of justice, more so, when such opinion is held to be conclusive evidence on the point of guilt or innocence of the accused and where the court relies on such perfunctory report the case is actually decided by the Chemical Examiner and not by the Court. When a report is received from ihc Chemical Examiner it would be shown to the Doctor who held the post-mortem examination to enable him to state what medico-legal inferences are to be drawn from such report.             

 

Per A.T.M. Afzal, J :—In a charge of murder by poisoning it is essential for the prosecution to prove, firstly, that the person alleged to have been murdered died of poisoning and secondly, that the accused person or persons administered poison with intent to commit murder.

 

Evidence of the Chemical Examiner is of little value unless there is clear proof of the identity of the matters examined by him, Prosecution must lead clear evidence to show the identity of the matters meant for Chemical Examiner so that there may not be any scope to doubt the identity of the matters at any stage. Monoruddin Vs. State (1978) 30 DLR 282.

 

S.511 : Section 511 requires that evidence of previous conviction should be adduced by the production of one of the certificates or documents mentioned in clauses (a) and (b) of the section through the hands of a witness. Unless some evidence is tendered by the prosecution to indicate that the accused has a previous conviction against him, no occasion in law can arise to the Court to put a question in respect of it to the accused. All Din Vs. State (1958) 10 D.LR (WP) 41..

—Even admission of previous conviction by the accused is not sufficient if previous conviction has not been deposed to by any of the prosecution witnesses and one of the certificates or documents mentioned in section 511, has not been produced. Mere admission of the accused of his previous conviction is not enough. All Din Vs. State (1958) 10 DLR (WP) 41.

 

—Mode of proving previous conviction. Section 511 does not limit the mode of proving a previous conviction to the two modes mentioned in clauses (a) and (b) of the section, but permits the use of any other mode provided by any law for the time being in force. It, however, prescribes an essential requirement to the effect that in addition to proving the previous conviction, evidence must be led to establish the identity of the accused persons with the person previously convicted. Md. Ashraf Vs. State (I960) 12 DLR (WP) 27; 1960 PLD (Lah)416.

 

—Previous conviction—Method to prove the same.

The method of proof indicated in clauses (a) and (b) of section 511 regarding previous conviction are not exclusive methods of proof; but they are merely in addition to the other ordinary methods provided by law for the proof of a fact. Where trying Magistrate after the close of the defence evidence framed a separate charge under section 75, Pakistan Penal Code, and it is specially mentioned that the petitioner had previously been convicted and sentenced to suffer rigorous imprisonment and on the body of the charge it is endorsed that the charge has been read over and explained to the accused who admits the previous conviction and sentence

 

Held : The accused petitioner has not been misled as to the specific nature of the previous conviction. Ameer All Vs. State (1960) 12 DLR 726.

 

Ss.511   &   255A  :   Previous   conviction when need be proved.

Where the accused pleads guilty to the charge of previous conviction, that amounts to admission of guilt under section 255A, Cr.P.C, and therefore, the previous conviction need not be proved under section 511. Quim Din and Omar Din Vs. State (1958) 10 DLR (WP) 69.

 

S.512 : Depositions of witness put in the Sessions Court under section 33, Evidence Act. Where the depositions of witnesses were taken down under section 512, and the prosecution subsequently put them in the Court of Session under sec. 33, Evidence Act, the Judge, while allowing them to be used as evidence, failed to give caution to the jury and the witnesses whose evidence were so put in had not been subjected to cross-examination. The omission to explain this matter to the jury was fatal and vitiated the charge. Abdur Rahman Vs. Crown (1950) 2 DLR 285.

 

— Whether reference of a case to the tribunal was bad merely because amongst the accused there are absconders as well. Such a reference is not bad provided the tribunal does not try the absconders in absentia, nor even prepares a record which might be prejudicial to them in future. Neither the evidence, nor the findings that are recorded in the case will be binding or usable against the absconders, except for such evidence as may be bond. ordinarily admissible in terms of section 32 of the Evidence Act. Nabi Ahmed Vs. Home Secretary, Govt. ofW. Pak., (1970) 22 DLR (SC) 21.

 

—Evidence on charges under sections 376 and 392 P.P.Code was recorded against absconding accused persons under sec. 512, Cr.P.C. in their absence. Subsequently they were arrested after 8 years. After the arrest the Magistrate committed the accused to the Court of Session without attempting to procure the attendance of the prosecution witness and merely recorded that such witnesses have either left the country or were untraceable. The High Court in this circumstances quashed the proceedings and directed fresh proceeding according to law. State Vs. Allahdad (1968) 20DLR (WP) 62.

 

—Trial in absentia authorised under article 9(1) of P.O. 8 of 1972 cannot be legally held unless ills proved that the accused has absconded and there is no immediate prospect of arresting him before the Court which is trying the accused in absentia—when this is not done, trial illegal and the accused must be set at liberty—Article 9(1) of P.O. 8 of 1972 cannot override the provisions of s.512(I) of the Criminal Procedure Code.

 

The phrase "if it is proved" is much stronger than the court's satisfaction that the accused has absconded. In this case, evidence was recorded in absentia not to be used against him "on his arrest" but he was tried on that evidence. It was, therefore, all the more necessary that both the conditions precedent were fulfilled.

 

Article 9 of the P.O. 8 of 1972 provides for trial in absence of the accused. But section 512 of the Criminal Procedure Code not being inconsistent with this Article or with any other provisions of the Order shall apply to a trial in absentia.

 

Non-compliance with the provisions of section 512 is not a mere omission, error or irregularity, but is a serious illegality which goes into the very root of a trial. As such this trial has been vitiated. Wai Ali Talukder Vs. The State (1976) 28 DLR 128.

 

S.513 : Cash  deposit  in  place of that; The provision of section 513 to the effect "when any person....................in lieu of executing such bond" was enacted in the interest of persons who, because they are strangers in the locality or foi I some other reasons, are not in a position to arrange for bail or be able to offer sureties. In the case of f these persons, the Court is allowed to accept deposit t in lieu of bond. Lakhi Narayan Vs. Crown (1952)4 j DLR 352.

 

Ss. 513 and 499

—The   language  of  section 499 of the I Cr.P.Code makes it abundantly clear that what is I required is the furnishing of a personal bond by one j or more sufficient sureties for an amount fixed to the satisfaction of the authority of the court concerned.

 

Section 513 appears to be an enabling provision whereby the court may permit an accused to deposit a sum of money in lieu of executing a personal bond and giving a surety of some persons. Fron\a plain reading, section 513 does not appear to authorise a court to ask for cash security. R.K.M.Reza Vs. Stale (1981) 33 DLR 146.

 

— The word 'permit' in section 513 connotes a prayer on behalf of the accused—Court's power u/s. 499. The word "permit" occurring in section 513 presupposes a prayer from the accused and did not contemplate imposition of cash security as a condition by the court on its, own. Section 499 is a substantive section which empowers the Court to release a person on bail and this section speaks of a person being released on bail either on his own bond or on a bond for such sum of money as the court thinks sufficient. R.KM. Reza V». Slate (1981) 33 DLR 146.

 

—Enables the accused to offer cash deposit in lieu of bond required u/s 499. Too big a sum .demanded as cash deposit to bail tantamounts to refusal-of bail. R.K. M.Reza Vs. State (1981) 33 DLR 146.

 

S.514 : Penalty for default in producing the accused before Court— Principle to follow. Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the 'guilt' of the sureties in terms of money, but with the object of maintaining the system in its integrity. In other words, system of leniency towards sureties becomes the general rule, the whole system of release of accused persons on bail might require to be re-examined to ensure the proper progress of criminal cases. At the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock-ups and other attendant inconveniences. Sycd Moazzem Rossain Vs. State (1961) 13 DLR 726.

 

Bail bond—forfeiture of

In forfeiting bail-bond the Court should sec that balance between undue leniency and undue severity 'is maintained. In assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. Dildar Vs. State (1963)15 DLR (SC) 38.

 

—Bail bond to be strictly construed— Magistrate has no power to forfeit a bond when further hearing of case pending, in his Court has been stayed by the higher Court.

 

These accused were released on bail bond executed by several sureties. The undertaking that the sureties gave before the Court was to produce the accused for the preliminary enquiry in the Court holding the preliminary enquiry and thereafter in the Court of Session, if necessary. They gave.no other undertaking to the Court. While the case was thus pending before the trial magistrate, the accused moved the Additional District Magistrate for transfer of the case whereupon the Additional District Magistrate passed an order staying further proceedings and also directed that the transfer of the case would take place after the investigations were completed.            

              .

After the above orders the trial magistrate took up the case and, having found the accused absent, directed the sureties to pay up the amounts due under the bail bonds.

 

Held : The trial Magistrate was bound to carry out the orders of the Additional District Magistrate staying further proceedings, and was not competent to take any further step for holding of the preliminary inquiry in the case. His order forfeiting the bail bonds constituted a gross illegality. Birendra Kumar Cho\vdhury Vs. State (1959) 11 DLR 491 : (1960) PLD (Dae) 184.

 

Terms of the bond to be strictly followed.

When a bond was executed either to produce the canes or the value thereof but notice was issued under section 514 to pay the value of the canes, the order forfeiting the bond and exacting penalty therefor could not be maintained. Ebrahimuddin Vs. Mufizuddin (1957) 9 DLR 379.

 

Sections 514, 496 and s. 29 of P.D.R. Act.

—Provisions of section 496 are not applicable in the case of a certificate-debtor who is arrested under section 29 of the Public Demands Recovery Act and therefore proceeding under section 514 of the Code cannot be drawn up against his surety. Kafiluddin Ahmed Vs. Crown (1956) 8 DLR 184.

 

— Due opportunity to be given before an order of forfeiture is made.

Bond, forfeiture of—Several provisions of the section to be followed—Court's satisfaction to be recorded on grounds proved—Court must give due opportunity to the person bound by the bond to adduce evidence and cross-examine witnesses to show that he is not liable to be penalised or that no forfeiture had been incurred—Opportunity to be given even after the notice to show cause. Rustam All Vs. State (1957) 9 DLR 424.

 

—Provisions to be complied with before an order for forfeiture can be made—Magistrate must record evidence and finding that me bond has been forfeited before issue of notice—He must have before him sufficient proof based on good reasons. Sarfuddin Vs. State (1957) 9 DLR 433.

 

S.514 & s.345(6) : Composition of offenceforfeiture. Under section 514 if the Court orders a certain person to pay a penalty, it has got to be satisfied that the bond taken from that person had been forfeited by him. Composition of an offence under section 345(6), Cr.P.Code, has the effect of acquittal of the accused and, therefore, prima facie the acquitted person cannot be said to have forfeited the bond. UmarDaraj Vs. Govt. ofPak. (1956) 8 DLR (WPQ54.

 

S.514 : It is, however, open to the prosecution to produce evidence in proceedings under section 514, proving that the relevant person has committed the offence and forfeited the bond. The Court would then proceed to penalize the person in spite of the composition of the offence. Umar Daraj Vs. Govt. ofPak. (1956) 8 DLR (WPC) 54.

 

—Simultaneous order to execute bond or suffer imprisonment. Simultaneous order to execute bond and suffer imprisonment in default, illegal. Ledu Vs. Crown (1955) 7 DLR 98.

 

—Before which Court to appear.

The bond which was furnished by the sureties in the Court of the District Magistrate recited that the sureties undertook to produce the accused "before your honour". "Before you" means before the District Magistrate and not before any other Court, The bond of the sureties could not, therefore, be forfeited on the ground that the surety had not produced the accused before the Assistant Sessions Judge. Nil Kumar Vs. Crown (1953) 5 DLR 488.

 

—A Muktcar who stood surety for the accused undertaking to produce him on a particular date is not liable to forfeit the bond and pay the penally under section 514, if the accused fails to appear before the Court on a dale subsequent to that dale for which the undertaking was given. Crown Vs. A. Hakim (195315 DLR 195.

 

—The applicant released an abducted girl on furnishing bail-bond for her production before the Deputy Commissioner, whenever required. He ultimately failed to produce her. Thereupon the Additional District Magistrate ordered the forfeiture of the bond under section 514.

 

Held: Forciture order not being by the Deputy Commissioner but by the Additional District Magistrate is not a vaild order. Hashim Din Vs. Govt. ofAzadJ. & K. 5 DLR (WPC) 28.

 

When a bond is executed before a Magistrate for appearance before the Sessions Court, it is the latter Court which alone can start proceedings under section 514 for determining whether the bond has been forfeited. Crown Vs. A. Sobhan (1952) 4 DLR

 

—Forfeiture order; when  illegal.

An order directing forfeiture under section 514, without giving the petitioner an opportunity of proving his allegation, is bad. Hashim Din Vs. Govt. ofAzad /. & K. (1953) 5 DLR (WPC) 28.

 

—If a person undertakes as surety to produce an accused person before the Court and in default of his appearance to forfeit a sum of money to Government, he is not discharged from his liability by the fact that the amount due from the accused on his own bail-bond has been satisfied by the attachment and sale of his property in distress proceedings. Hemendra Chandra Vs. Crown (1950) 2 DLR 196.

 

—Proceedings    to    be    of    criminal nature. An order of forfeiture of a bond under section 514 could only be passed where the proceedings are of a criminal nature under the provision of the Code of Criminal Procedure. Hemendra Chandra Vs. Crown (1950) 2 DLR 196.

 

—Strict   compliance   with   the   terms necessary.

When proceedings to forfeit a bond are started against the sureties under section 514 it is necessary that the persons affected should be called upon to comply strictly with the terms of the bond. Crown Vs. A. Sobhan (1952) 4 DLR 33.

 

—When proceedings are taken to forfeit a bond under section 514, it is necessary that the person affected should be called upon to comply strictly with the terms of the bond. When, therefore, a bond was executed cither to produce the canes or the value thereof but notice was issued under section 514 to pay the value of the canes, the order forfeiting the bond and exacting penalty therefor could not be maintained. 53 CWN (1 DR) 45.

 

—Forfeiture of bond—Despite notice to appear to show cause why the bail-bond should not be forfeited, the surety failed to appear. In these circumstances the Court had no alternative but to direct the forfeiture of the bail-bond. Surety failing to appear to show cause— Forfeiture—Disobedience of summons executed should not be treated lightly. (1952) PLD (Bal.) 56.

 

—Appeal and revision—While powers of the High Court in revision proceedings arc entirely unlimited and unfettered, the Crown, moving for forfeiture of the whole bond under section 514, should first approach the District Magistrate in appeal under section 515 Cr. P.C., before coming to the High Court in revision. (1950) PLD (Bal) 49.

 

—Forfeiture of bond—Condition precedent before surety can be called upon to show cause or make payment.

Three stages are contemplated for a proceeding under section 514. Firstly, a declaration of forcfciturc, secondly, the order for payment or to show cause, and thirdly, steps to be taken for the recovery of the amount. The declaration of forfeiture must be proved upon cogent grounds establishing, to the satisfaction of the Court, that the forfeiture has taken place. The Code further insists that not only such grounds must exist but that the Court shall also record such grounds. Again, if the notice to-show cause had been issued the Court must further be satisfied that the cause shown is not sufficient before' it can proceed to lake steps to recover it. The words "whenever it is proved to the satisfaction of the Court" means that such satisfaction must be grounded upon some cogent evidence. Wilayat Hussain Vs. The State, (1968) 20 DLR (WP) 4.

 

—Forfeiture of bond—Condition precedent before forfeiture of a surety bond. A.K.M. Abdur Rashid Vs. State, (1978) 30 DLR 166.

 

8.514(2)—Issue of distress warrant to the surety without asking him to show cause is illegal—Courts should not be too hard to the lawyer-surety. A.L.Zahirul Huq Khan Vs. State, (1961) 13 DLR 275 : (1962) PLD (Dae) 447.

—On forfeiture of bond, immovable property cannot be attached in lieu of penalty—General warrant for attachment and sale of property of the surety is improper and invalid. Haji Abdul Ghani Vs. The State, (1970) 22 DLR (WP) 175.

—8.514(3) : Warrant of attachment of movable property of surely situated out of the territorial limits of the Court issuing the warrant must be endorsed by the District Magistrate in whose jurisdiction such property is found—The provision being mandatory, non compliance renders warrant invalid. Haji Abdul Ghani Vs. The State, (1970) 22 DLR (WP) 175.

8.514(4)     :      Arrest     of     surety

Simultaneous'order for attachment of property and arrest of surety is illegal—Necessity of warrant of arrest and imprisonment of surety arises only when amont of penalty could not be recovered by attachment and sale of movable property of the surety. Haji Abdul Ghani Vs. The Slate, (1970) 22 DLR (WP) 175.

S.516A—Property contemplated under the s.ection is a movable property.

The word "produced" occurring in section 516A clearly indicates that the property spoken of must be such as may be produced in a Court and this undoubtedly shows that the property contemplated in the section is movable property and not immovable property. Mono Ranjan Das Vs. The State, (1967) 19 DLR 522. '

—In both the sections namely, sections 516A and 517 "property" contemplated is movable property. Mono Ranjan Das Vs. The State, (1967) 19 DLR 522.

—Property was not used for committing any offence—Such property cannot be given in custody under section 516A and if the possession of the property was by a bonafide purchase the

question   that  the   seller   had  no  right to sell  it  irrelevant. ;

*

The fact is that the jeep in question was not used for the commission of any offence. The jeep even if it be assumed to have been brought before the Court was neither the subject-matter of any criminal case nor was it used for commission of any offence. The custody of the jeep as such could noibc given away by the Magistrate under section 516A, Cr.P.C.

 

It is admitted that the applicants had come in possession of this jeep as bonafide purchasers from Tauqir Zohra. The contention of the other side only is that Miss Tauqir Zohra had no authority whatever to sell this jeep to the applicants. The question whether Miss Tauqir Zohra had the authority to scl| the jeep or not is a question which could not be said to be within the competence of the Magistrate to decide. Lahore Race Club Vs. The Stale, (1968)2(1 DLR (WP) 84.

 

—Section 516A empowers a criminal court to pass an order for custody and disposal vof properly during any enquiry or trial and it docs not empower an Investigating Officer to give any property in the custody of any person. Siddique Ahmed Showdagar Vs. The State (1988) 40 DLR 268.

 

S.517 : The Magistrate having found the accused not guilty of the offence of smuggling acquitted him of that charge but ordered that the seized articles in respect of which the offence was alleged to have been committed be confiscated.

 

Held : After acquitting the accused of the offence of smuggling, the order of confiscation of goods cannot be maintained in law. Ramranzan Chowdhury Vs. State (1959) 11 DLR 54.

 

—An application for restoration of property may be filed within a reasonable time from the date -of final decision.

 

As there is no limitation prescribed by law for filing such an application, it could have been made within a reasonable time from the date on which the final decision had been given in the case. Saved Bahadur AH Shah Vs. Md. Anwar (1959) 11 DLR (WP)71.

 

—The result of the inquiry or trial is immaterial for the purpose of attracting the provisions of section 517. An order can be passed under this section for the delivery of the property to any person claiming to be entitled to possession thereof, irrespective of the fact that the inquiry or trial has resulted in the discharge or acquittal of the accused provided that other conditions specified in this section arc fulfilled. Syed Bahadur All Shah Vs. Md. Anwar (1959) 11 DLR (WP) 71.

 

—Articles of which ownership is not established are to remain in Court custody till right thereto is established in Civil Court. Where accused is let off on benefit of doubt and incomplete evidence, the seized articles arc to be delivered to the accused which were seized from him but,as regards articles for which neither the complainant nor the accused could substantiate their respective claim, those articles would remain in the custody of the Court till right thereto is established in the Civil Courts. Abdul Latif Vs. Stale, (1962) 14 DLR 782.

 

—Confiscation of goods—Confiscation of Ihe goods in respect of which an offence is committed can be ordered under section 517 when there is provision in the Act under which the offence is tried. -Abdul Noor Vs. State (1957) 9 DLR 633.

 

—Confiscation order—Property used for the commission of an offence—Mare used for escape after theft—Whether could be confiscated. The rule of law is that if a property which could not have contributed to the commission of an offence, being remotely connected with it, was made use of by an offender, that property could not be said to have been used in the commission of that offence. When the possession of a mare by the culprits was meant to take them to and from the place of occurrence, and it was not meant to be used like the implements for house-breaking, and being only indirectly and distantly connected with the actual offence, without the use of which the offence of theft could have been committed, it would be wrong to hold that it was used for the commission of theft. The order of the forfeiture of the mare under section 517 cannot, therefore, be upheld. Bahawal Shah Vs. Crown 1 PCR 47.

 

—A confiscation under section 517 cannot be maintained unless it has been provided by the Act itself under which the order of confiscation is passed that it shall be competent for the Court to pass, a confiscation order. Kartik Chandra Vs. Crown (1954) 6 DLR 37.

 

—Sessions Court in appeal while acquitting on a charge under section 411 P.P.C. failed to pass an order of disposal of property under section, 517 which he could have done. High Court is exercising of its inherent power under section 561A passed the order. Nezamuddin Ahmed Vs. State (1965) 17 DLR 628.

 

—Restoration of the stolen property ordered by the High Court. Complainant has made an application under section 517 Cr.P.C. with a prayer that the motor engine which had been stolen and now recovered should be restored to him. There being no objection from the prosecution to the restoration of the property to the complainant, it is directed that the motor-engine be restored to the complainant. Korban All Vs. State (1976) 28 DLR 250.

 

—No appeal or revision lies against the order of the trial Court to the Sessions Judge; Sessions Judge can pass any order u/s. 517. Satish Chandra Biswas Vs. Mainuddin Dai (1977) 29 DLR 277.

 

—An order under section 517 of the Code is an independent order although it might have been passed in the same judgment. Satish Chandra Biswas Vs. Mainuddin Dai (1977) 29 DLR 277.

 

—Property ordered to the person found entitled thereto includes the property exchanged or in converted form. Mohammad Hossain Khalifa Vs. Kalachand. (1983) 35 DLR 229.

 

—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon Vs. The Slate, (1988) 40 DLR 280.

 

—S.517(I) : An order under section 517(1) can only be made when inquiry or trial is concluded.

There could be no order under section 517 in this case as the opening words of sub-section(I) of section 517 clearly indicate that an order can be made under this section only when an inquiry or trial in a criminal court is concluded. Mono Ranjan Das Vs. The Slate, (1967) 19 DLR 522.

 

—The Court has a very wide discretion as to the mode of disposal of the property produced before it or in its custody. Sree Monoranjan Das Vs. The Stale (1980) 40 DLR 485.

 

8.517(4)—Delivery of property to any person on his undertaking to restore it when required by Court.

—Property ordered to be delivered to the person found entitled thereto includes the property exchanged or in converted form. Mohammad Hossain Khalifa Vs. Kalachand (1983) 35 DLR 229.

 

S.520—No appeal or revision would lie against orders with regard to disposal of property— Powers under section 520 may be invoked on an ordinary application—jurisdiction under section 520 is of a special kind which is neither appellate nor revisional. Ghulam Akbar Vs. State (1959) 11 DLR (WP) 14.

—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon Vs. The Stale, (1988) 40 DLR 280.

 

Scope of section 520—Courts can order restitution of property to rightful person even where property had already been delivered to some other party—High Court has also inherent power under section 561A to order restoration of property in such cases. Ghulam Akbar Vs. State, (1959) 11 DLR (WP) 14.

 

—Court of appeal—The words "Court of Appeal" occurring in section 520, are not necessarily limited to a Court before which an appeal is pending. (1950)PLD (Lah.) 97.

 

—A plain reading of section 520, would involve no limitation to the competency of a Court, to which ordinarily an appeal or a revision would lie, to interfere with an order passed under section 517, by the trial Court even without the, substantive case having come before the Court, in appeal or revision.

Property not proved to be the subject-mailer of offence should be restored to the person from whom it had been taken. (1950)PLD (Lah.) 97.

 

—Read with S.517. A court invested with jurisdiction to exercise powers conferred by s. 520 exercises that power irrespective of the fact whether he has no appellate or revisional power in regard to a particular case—A Court under the section 520 can restore property to its rightful owner, if il has been given by a subordinate court, even though no appeal was preferred against ihc order giving ihc property to somebody else. Satish Chandra Biswas Vs. Mainuddin Dai, (1977) 29 DLR 277.

 

1873

Constitution of Pakistan, 1962-31

Citation: (1961) 13 DLR 30 : (1961) PLD (Dae) 648, (1963) 15 DLR 498, (1963) 15 DLR 72., (1963) 15 DLR (WP) 29, (1955) 7 DLR 522, (1955) 7 DLR (WP) 60, (1950) PLD (Lah) 154, (1972) 24 DLR 162, (1977) 29 DLR 161, (1968) 20 DLR 855, (1959) 11 DLR 362 : _ (1958) PLR

Subject: Constitution of Pakistan

Delivery Date: 2018-09-18

S.522:   Appeal   Court   failed   to  reverse order  regarding   restoration   of possession while  reversing  the judgment of the trial. Court—cannot   do   so   after   the judgment was pronounced.

As soon as the appeal was disposed of and judgment delivered, the Appellate Court became "functus offlcio" and as such it had no jurisdiction to entertain the accused petitioner's application for setting the trial Court's order under section 522, and passed the order complained of and in such a case the Appellate Court's omission to pass necessary orders regarding restoration of the disputed property under section 522 is riot appealable but as against this omission a revision under section 439 Cr.P.C. would lie to the High Court in exercise of its revisional jurisdiction and set, aside the order of the trial Magistrate passed under section 522 of the Code. Basiruddin Miah 'Vs. Madhu Lai Somani (1961) 13 DLR 30 : (1961) PLD (Dae) 648.

 

—Order for restoration of posession of property can be made while convicting the accused and within one month there-after and not at the initial stage of the trial. Abdus SamadVs. Haji Mominuddin Khan (1963) 15 DLR 498.

 

—Trial Court on evidence accepted the allegation of use of force though did not record a factual finding to that effect—Evidence on record about use of force being present, order under this section; justifiable.

The finding of the Appellate Court clearly establishes the use of criminal force and so far the finding of the trying Magistrate is concerned it is to the effect that the prosecution case is proved and the prosecution case is that the offence has been committed with criminal force. In these circumstances, the order of restoration under section 522, is a valid order. Kader Mia Vs. Kader All and others (1963) 15 DLR 72.

—Appellate Court, when setting aside conviction as against an accused competent to set aside Magistrate's order under section 522 and order restoration of possession of property to the accused. toyed Ahmed Vs. Stale (1963) 15 DLR (WP) 29.

 

—Force or intimidation  necessary—An order under section 522 can be passed when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation. A. Jabbar Vs. Crown (1955) 7 DLR 522.

 

—The accused who was convicted and sentenced under sec. 447, Pak. Penal Code, was ordered to be evicted from the land under complaint under sec. 522. There was, however, no finding that the offence under sec. 447 was attended by criminal force and indeed the record did not contain any evidence on the point.

 

Held : The order passed under sec.522 is illegal. A. Jabbar Vs. Crown (1955)7 DLR 522.

 

—Dispossession—what     it     means—

Sec.522 comes into operation only when a person has been dispossessed of any immovable property. When what a person has been deprived of is a right of passage through a certain 'Jan' (drain) over which water used to flow into and from a tank, that cannot be construed as a dispossession from an immovable property within the meaning of sec. 522. Ashrafuddin Vs. Ebadullah (1950) 2 DLR 82.

 

—Restoration of possession—Section 522, 'docs not authorise the Court to restore the possession of the land to the accused, if the latter is acquitted by the higher Court. (1955) 7 DLR (WP) 60.

 

—No logical considerations can compel a Court to put back into possession of any immovable property to a person who was convicted of an offence involving use or show of criminal force or criminal intimidation in respect of such property, and who was deprived of its possession following such conviction, by an order under section 522, merely by reason of such person having been acquitted of the offence. (1950) PLD (Lah) 154.

 

—In case of acquittal, on revision by the High Court, possession oif land may be restored to the accused by the High Court in the exercise of its-inherent powers under section 561 A, Cr.P.C. (1955) 7 DLR (WP) 60.

 

— Restoration order vacated by the appellate court on appeal—Such order upheld by the High Court.

Though no appeal lay so far as the order of restoration of possession passed under section 522 Cr.P.C. is concerned yet the appellate court is competent to pass such order under clauses (d) of section 423 (1) of the Criminal Procedure Code. Jogmaya Kunda Vs. Sudhir Kumar Kundu, (1972) 24 DLR 162.

 

—Power of the High Court in restoring a property to the accused after his acquittal. High Court has discretionary power in considering whether an accused person should be put back into possession of a property regarding which he had been convicted of an offence during which dispossession had occurred by show of force, on the acquittal of the accused. The High Court in its revisional jurisdiction has the jurisdiction to see whether any order pursuant to setting aside of the conviction of the accused made by the courts below restoring possession to the accused persons, was correct or not. Mazharul Huq Vs. Nuruddin, (1968)-20 DLR 1108.

 

—Court is not bound to restore possession to a convicted person merely because of his subsequent acquittal. Ambia Khatun Vs. Raja Mia, (1977) 29 DLR 161.

 

S.522(I) : An order of restoration of possession of property under section 522 of Cr.P.C. (upheld on appeal) cannot be questioned by a person who was not a party to the proceeding, If the accused enters the building but leaves it quickly when the complainant comes on receiving the news of the trespass there would be no dispossession. It may amount to civil or criminal trespass depending on the intention but the moment the accused keeps out the owners from the land with show of force there will be forcible dispossession. Restoration must be made to the dispossessed person of the property as it was on the date of dispossession, otherwise the provisions of section 522 of the Code could be rendered nugatory. Monoara Begum Vs. The Stale, (1968) 20 DLR 855.

 

8.522(3)—Restoration of possession— Powers of the High Court. The High Court may pass an order for restoration of property under section 522(3), although there was no proceeding before it against the conviction of the accused. Lai Mia Vs. Ahmedullah Mia (1959) 11 DLR 362 : _ (1958) PLR 142 : (1960) PLD (Dae) 23.

 

— S.523: Magistrate dealing with matter under the section—What he is competent to do. In order to decide which party is entitled to the possession of a property un'der section.523, the Magistrate shall hold enquiry which should not be understood to mean a judicial enquiry. All that the Magistrate is to do is to examine the police file, and other materials placed before him by the contestants. The fact of the present case was that the police seized a vehicle which is the subject-matter of a criminal case. Both the accused and the complainant applied to the. Additional District Magistrate for handing over to them the car on proper security. During the pendency of the case, the complainant instituted a declaratory suit for the car. Thereupon the Additional District Magistrate kept the cases pending and awaited the decision of civil court. Basir Ahmed Vs. The State, (1967) 19 DLR (WP) 10.

 

— How to dispose of goods seized under the section.

Section 523 Cr.P.Code provides a procedure of dealing with the seized goods which says that the seizure of property suspected to have been stolen or found under the circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit regarding the disposal of such property or the delivery of such property to the person entitled to the possession thereof. 'Kanan 'Rani Paul Vs. State (1977) 29 DLR 26.

 

S. 523(1)—The Police who seized any property is under legal obligation to report forthwith the same to a Magistrate who is empowered under section 523(1) to pass an order for its disposal or delivery to the person entitled to possession thereon. Siddique Ahmed Sawdagar Vs. The Stale (1988)40 DLR 268.

 

—The act of the Investigating Officer to give custody of the property on the basis of the practice in vogue in the Police Department without any support of the statutory provisions of law to that effect in violation of section 523 CnP.C. is without any lawful authority/ and is illegal. Siddique Ahmed Sawdagar Vs. The Skate (1988) 40 DLR 268.

 

SECTION  526

Synopsis

1. Adjournment.

2. Applicability.

3. Apprehension.

4. Grounds.

5. Party interested.

6. Stay.

7. Miscellaneous.

 

1.  Adjournment.

 

S.526 : Question of transfer arising on conclusion of examination-in-chief of witness — Magistrate deciding to adjourn case after cross-examination—Discloses no mala fides—Magistrate not bound to stay proceedings in process of examining witnesses. 1 PLD (Bal) 12B.

 

526(8)—Adjournment—Failure to grant adjournment under the section, renders further proceedings invalid. Section 537 cannot cure the defect. HyderJaffery Vs. Crown (1956) 8 DLR (WP) 111.

 

2.   Applicability.

 

—Public Prosecutor's view opposing a transfer petition is entitled to great respect but not always the deciding factor. When an application for transfer under section 526 of the Code is opposed by the Public Prosecutor, the views of-the latter ought to prevail; but it cannot be laid down as a hard and fast rule that whenever there is a clash between the contention of a private complainant and the opinion of the Public Prosecutor, the view taken by the latter must prevail in every case. It would, however, require special and exceptional circumstances to induce Courts to transfer criminal cases at the instance of private complainant when such transfer is opposed by the Public Prosecutor. Sayed Kanchan All Vs. Shahjahan (1962) 14 DLR 573.

 

3.   Apprehension.

 

—Court having formed a definite opinion in trying the accused not fit to try him on remand. Could an accused person be said to entertain a reasonable apprehension that he will not have a fair trial, if the reason for the fear is that the tribunal trying him could not approach the case from independent angle having committed itself earlier to a conclusion against him.

 

Held : A fair trial postulates an independent approach to the evidence led and if the accused reasonably entertains the fear that he is not likely to have it there will not be any escape from the conclusion that he has been denied a fair trial. Mahabat Vs. State (1961) 13 DLR (WP) 56.

 

—In the above case, the accused can be said to entertain a reasonable apprehension that he may not have a fair trial by the same Magistrate. Mahabat Vs. Slate (1961) 13 DLR (WP) 56; (1960) PLD (Lah) 1187

—Transfer of a case to be ordered when apprehension (not necessarily reasonable apprehension) exists.

The section does not make it necessary that there should be a reasonable apprehension in the mind of the accused that he will not get a fair and impartial inquiry or trial. It is enough if it appears from circumstances placed before the High Court that a fair and impartial inquiry or trial cannot be held by the Court. Abdul Huq Vs. Abdul Matleb (1965) 17 DLR (Dae) 233.

 

—Transfer of a case from the trying Court.

The petitioner said that because he had helped actively a certain candidate for election, who was a rival to the Sessions Judge before whom his appeal was pending, he would not have a fair trial. The allegation of active help was denied by the Sessions Judge.

 

Held : A case for transfer has been made out. A Karim Vs. Govt. Azad J. and K. (1953) 5 DLR (WP) 32.

 

—Transfer of case—Court's attitude when creates reasonable apprehension.

From record it appears that the Sessions Judge had practically made up his mind with regard to the credit oT P.W. I before the close of the prosecution case. This is a premature assessment of the evidence which can be properly apprised only after the rest of .the prosecution witnesses have been examined. He openly characterised the witness as a liar before his cross-examination has commenced.

 

Held : In the interest of justice, this case should be tried by some other Judge. S. Kanehan Ali Vs. Shajahan (1962) 14 DLR 573.

 

—On the day fixed for appearance, one of the accused was absent without taking any steps. The Magistrate not only cancelled his bail-bond but also the bail-bonds of the other accused who were on bail. He also passed an order to draw up proceeding under section 514 of the Code of Criminal Procedure against them asking them to show cause against the realisation of the entire amount of bail from them. On the same day, later on, the Magistrate passed an order that accused B give a P.R. of Rs.100/- to produce accused A on 24.4.59.

 

Held : The circumstances set forth above are enough to show that the Magistrate is biased against the accused persons and that fair justice cannot be expected in his Court. Jagabandu Bhoumik Vs. State (1960) 12 DLR 458; (1960) PLD (Dae) 981.

 

—In this case when the petitioners submitted an application before the Magistrate on 7-11-64 intimating that they would move the High Court for transfer of inquiry by some other Court inasmuch as the same Magistrate had decided possession of the disputed plot in favour of the opposite party in the proceeding under section 145 of the Code and that this gave rise to an apprehension that they may not have a fair and.impartial inquiry or trial before him.

 

Held : It is expedient in the interest of justice that Acre should be a transfer of the case. Abdul Hoq Vs. Abdul Matleb (1965) 17 DLR 233.

 

4.  Grounds.

 

—The fact that the Magistrate followed the provisions of the law" in dealing with the contempt committed in his presence is no ground whatever for transferring a case from his file. Nadira Begum Vs, Crown (1950) 2 DLR 80.

 

—Impression that a Judge has developed an attitude towards convicting an accused is a ground for transfer. Bashir Ahmed Vs. State (1958) 10 DLR (WP) 12.

 

—Committing Magistrate promoted as Sessions Judge—case not to be transferred on this account—Principles for transfer of case explained.] PLD (Bal) 20.

 

5.  Party  interested.

 

S.526(8)—Any party interested—If uncle of a murdered man's application for transfer.

In the present case it has been found that the father of the deceased (for murder of whom the case was started) was already dead. The petitioner who has moved the petition for transfer of the case pending before the Sessions Judge is the brother of the father as well as guardian of the deceased. The petitioner claims that he is keenly interested in the welfare and stands in loco parentis to the deceased. The transfer of the case -by the petitioner was opposed on the ground that he cannot maintain the application for transfer as he is not a "party interested" within the meaning of that expression occurring in sub-section (8) of section 526.

 

Held : A person in the position of the petitioner is a party interested within the meaning of section 526 of the Code. Sycd Kanehan AH Vs. Shahjahan (1962) 14 DLR 573 : 1962 PLD (Dae) 192.

6.   Stay.

 

—When a transfer application is presented to the trial Court to stay the proceedings and the Court thereafter passes an order unfavourable to opposite party, the action of the Court cannot fail to create genuine apprehension in the mind of the other party that he would not get a fair and impartial trial. Ghulam Quasim Vs. Langra (1958) 10 DLR (WP) 1.

 

7.   Miscellaneous.

 

—It is also absolutely necessary that the Court should give impression to the parties that justice will be done. What is of paramount importance in such cases is the feeling created in the mind of the parties that the proceedings will be conducted in a just and impartial manner. Ghulam Quasim Vs. Langra (1958) 10 DLR (WP) 3.

 

—Proceedings under sec. 228, P.P.Code, follow this procedure laid down in s.480 Cr.P.Code, and the provisions of that section have to be applied by the Court then and there before its rising. Nadira Begum Vs. Crown (1950) 2 DLR 80.

 

—Bench of the High Court Division of Jessore has full power to transfer a case pending in the court of a district of one Division to that of another court of another Division. Kari Palan Mia Vs. State (1983) 35 DLR LISA.

 

—Despite setting up of Benches at different places in the country, the High Court Division of Bangladesh retains its unitary character under one and the same Chief Justice—all the Courts are subordinate to the High Court Division and not to any particular Bench. (Therefore the jurisdiction of a particular Bench of the High Court Division, irrespective of the place where it may at present be located—Dhaka, Comilla, Jessore, Rangpur— extends over whole of Bangladesh—Its power envisaged under section 526 Cr.P.C. as ever, remains unaffected). Kari Plan Mia Vs. State (1983) 35 DLR 1 ISA.

 

—High Court Division's power under section 526 read with sec.561 A to transfer a case from one court to another court, whether it is sitting in Jessore or Dhaka or elsewhere remains unaffected, as before. Kari Plan Mia Vs. State (1983) 35 DLR USA.

 

—Transfer of criminal cases— Difference between sections 192 and 526

Cr.P.C. A transfer under section 192 Cr.P.C. must be always "for inquiry or trial" and even if the language of the order of transfer is not meticulously precise an implicit direction to this effect may be taken to exist. The object of such transfer is that the transferee Magistrate has hmiself to inquire into or try the transferred case.

 

Under section 526, a case is transferred without any restriction on iband the inference is that where a case is transferred by the High Court under this section, the transferee Court may, in the absence of direction to the contrary, try the transferred case himself or transfer it to a Subordinate Magistrate. State Vs. Ali Muhammad (1959) 11 DLR (WP) 42.

 

S.526(I)(e)(iv): Transfer of the case which is pending enquiry before a Magistrate to the High Court not legal.

While the case which involved murder charge and charges under sections 436, 452 P.P.Code etc. was pending before the City and Additional District Magistrate, Karachi, the petitioner (before the Supreme Court) moved the High Court, Karachi Bench for tranter of the case from the Magistrate Court to the H h Court for trial. At the same time the accused also filed an application before the High Court that the case be transferred from Karachi to Lahore for trial by the High Court there. The High Court passed an order that the case be transferred from Karachi to Lahore for trial by the High Court at Lahore.

 

Held: At the stage in which the case was (i.e., pending enquiry before the Magistrate) when it was brought before the High Court for transfer of the case from the Magistrate Court to the High Court, it was not competent for the High Court, to make an order transferring the case to itself for trial and as such the order passed by the High Court granting the prayer .of the petitioner for such a transfer was one which the Court was not competent to make and must therefore be set aside.

 

At such stage the case could not be transferred to the High Court for trial at all. It is necessary-that it should be returned to the Magistrate for enquiry under Chapter XVIII, and it would then be open to the High Court to direct under section 526(1) (e) (iv), if it thinks it necessary, that the case should be committed to itself for trial. Shamsuddin Vs. Gauhar - Ayub (1965) 17 DLR (SC) 384.

 

S.526B(3) : Before the High Court is moved under sub-section (3) of s. 526B Cr.P.C. for transfer of a case from one Criminal Court to another the applicant, priof to that, must move the Sessions Judge as is provided by the proviso to sub-section (3) of s.526 Cr.P.Code.

 

Sub-section (3) of S.526B Cr.P.C. provides that the provisions of sub-sections (4) to (10) of s.526 Cr.P.C. shall apply in relation to an application made to the Sessions Judge for an order of transfer of cases. Arjuman All Vs. Abdus Samad (1985) 37 DLR 62.

 

S.528: Notice should be given to the other party and afford him an opportunity to be heard before ordering the transfer. High Court has power to set aside an order of transfer made without notice to the other party. Golam Sarwar Vs. Md. Akhtar (1962) 14 DLR (WP)38.

 

—There is no law either in the Criminal Procedure Code or in the Civil Procedure Code according to which a petition for transfer of a case from the Court of one Judge to the other Judge of the High Court can be made. Crown Vs. A Rahman 2PCR64.

 

S.528(2): Before ordering transfer of a case from a Magistrate's court, the opposite party in the case as well as the Magistrate before whom the case has been pending should be given notice about the application for transfer of the case from the Magistrate's court. Md. Abdul Hakim Bhuiya Vs. Hazrat Ali (1978) 30 DLR 266.

 

8.528(5): Transfer of a case from the file of one Magistrate to that of another, without notice to the opposite side and without hearing him and giving no reason for transfer—illegal. State Vs. Nani Gopal Basak, (1963) 15 DLR 270.

 

S.529: If cognizance is taken by a Magistrate not competent to take cognizance, it is merely an irregularity curable under section 529 Cr.P.C. Azhar Khan Vs. State (1960) 12 DLR 838. : (1961) PLD (Doc) 484.

 

—Sec. 529 read with s. 531.

Even if the jurisdiction is assumed wrongly or the proceedings are initiated in a wrong place, these are irregularities which do not vitiate the proceedings and are curable under section 529 read with sec.531 of the Code of Criminal Procedure. Karl Palan Mia Vs. Slate (1983) 35 DLR 118B.

 

S.529(f): Transfer of case—Transferee Magistrate cannot further transfer it to some other Magistrate—Such transfer illegal and not curable under section 529(f). Slate Vs. Ali Md. (1959) II DLR (WP) 42 : (1958) PLD (Kar) 538.

 

S.531: The evidence in this particular case was that the seller carried on business both at Chittagong and at Akkelpur in Bogra. Therefore, in accordance with the general law of the land, the buyer has to make payment to the seller at the place of business being both at Chittagong and at Akkelpur, the trial could have taken place at either of the two places.

 

Even assuming that there was a defect or irregularity in holding the trial at Bogra, that irregularity is abundantly cured by section 531 of the Code of Criminal Procedure. Such a trial did not cause any prejudice to the appellant or occasion any failure of justice. Rameshwar Lai Agarwala Vs. State (1959) 11 DLR 213.

 

—Objection as to the place of trial as envisaged by section 531 must be taken at the initial stage of trial—It cannot be allowed where the trial has been concluded. Latifa Akhtar Begum Vs. Md. Abdul Ha/dm, (1973) 25 DLR 268.

 

S.533: Failure to keep a memorandum of accused's statement—Irregularity curable under section 533. Hazrat Jama! Vs. State (1959)11 DLR (SC) 84: (1958) PLD (SC) 383.

 

—Any irregularity in recording the confession is curable u/s. 533 Cr.P.C. Ratan Kha Vs. State (1988) 40 DLR 186.

 

—Accused's     statement     when     not

signed:—When the statement of the accused recorded by the Magistrate under section 364, Criminal Procedure Code, was not signed by the accused under sub-section (2) of that section, it was incumbent upon Sessions Judge, before whom, in view of the mandatory provisions of section 533,Cr.P.C. an appeal by the accused was preferred, lo call upon the Magistrate and record his evidence that the statement so recorded was made by the accused. The usual endorsements, in the statement by the Magistrate, by no means prove that the statement as such was either a correct or a proper recording of what the accused had said. Syed Ndor Vs. Crown (1953) 5 DLR (WPC) 49.

 

—If a confession is recorded without the observance of the formalities of section 164 it "need not be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as lo his defence on merits. Ghulam Abbas Vs. The Stale, (1968) 20 DLR (WP)

 

—Magistrate who recorded the confession u/s.164 or 364 Cr.P.Code need not be examined in Court. Emran AH Vs. State (1985) 37 DLR 1.

S.535 : The proper course in a case when the statement of the accused has not been signed by him and the strict provisions of section 533 have not been complied with is to exclude such statement from the consideration of the case. Syed Noor Vs. Crown (1953) 5 DLR (WPC) 49.

 

Irregularities curable—Irregularities in recording a confession can be cured under section 533 Cr.P.C. But it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. .In other words, the matter is one of substance and not merely that of form. (1950) 2 DLR (Lah) 68.

 

S.535: Formal charge not framed— effect:—Omission to frame a formal charge in a case which, by virtue of the provisions of section 264, Cr.P.C, has been tried summarily and in which art appealable sentence has been awarded is an irregularity within the meaning of section 535 of the Criminal Procedure Code and does not vitiate the trial unless, in the opinion of the Court of appeal or revision, failure of justice has thereby been occasioned. Safar Mallik Vs. Crown (1952) 4 DLR 364.

 

1874

Constitution of Pakistan, 1962-32

Citation: (1958) 10 DLR (SC) 48, (1959) 11 DLR (WP) 74 : (1959) PLD (Lahore) 167, (1963) 15 DLR 279, (1958) 10 DLR (SC) 193, (1961) 13 DLR 213, (1956) 8 DLR (FC) 55, (1956) 8 DLR (WP) 117, (1961) 13 DLR 716; (1962) PLD (Dae) 221, (1960) 12 DLR (SC) 42 : (1960) PL

Subject: Constitution of Pakistan

Delivery Date: 2018-09-19

SECTION 537

Synopsis

1. Irregularity in charge.

2. Irregularity in other proceedings.

3. Irregularity in procedure.

4. Irregularity not curable.

5.  Omission.

6. Failure of justice.

7. Miscellaneous.

 

1. Irregularity in charge.

—Defect in the charge—stating that the accused were smuggling silver to India out of a notified area, instead of removing silver from notified area to a place within Pakistan, when not fatal. Taheruddin Vs. State (1958) 10 DLR (SC) 48.

 

2. Irregularity  in  other proceedings

—Proceedings under section 488—Failure to record a finding as to neglect or refusal to maintain wife and child constitutes only an irregularity curable under section 537. Sh. Azmatullah Vs. Mst. Imtiaz Begum (1959) 11 DLR (WP) 74 : (1959) PLD (Lahore) 167.

 

3. Irregularity in procedure.

—Failure to question the person concerned whether he denies the existence of path, etc. does not render the trial invalid, if such person without being asked by the Court denies its existence and leads evidence to that effect—Irregularity arising out of non-questioning curable under section 537 Cr.P.C. Dhanue Shaikh Vs. Rahim Baksh Sk.(1963) 15 DLR 279.

 

—Statement of prosecution witnesses recorded by the committing Magistrate transferred to sessions record on the ground that their depositions were of a foftal nature—Procedure illegal—Defect not curable under section 537. All Haider Vs. State (1958) 10 DLR (SC) 193.

 

4. Irregularity not curable.

—Misjoindcr of charges is an illegality not curable by .section 537. A.Kuddus Vs. M.S. Khan (1961) 13 DLR 213.

 

—Irregularities which do not vitiate trials. Mode of trial cannot be contravened—As for the contention that no prejudice was caused to the accused by the misjoinder, the question is really not one of prejudice but is whether the law laid down with regard to the mode of trial was contravened.When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises. Qader Dad Vs. Sultan Bibi (1956) 8 DLR (FC) 55.

 

—Failure to grant adjournment under sec. 526(8) renders further proceeding invalid. Sec. 537 cannot cure the defect. Hyder Jaffery Vs. Crown (1956) 8 DLR (WP) 117.

 

—Compliance of the provisions of sections 211 and 212 mandatory—defects on account of such non-compliance not curable by section 537. State Vs. Korban Sarder (1961) 13 DLR 716; (1962) PLD (Dae) 221.

 

—Omission to supply to accused at trial copies of statements of witnesses recorded in police investigation—Copies supplied at hearing of appeal; irregularity not curable under section 537 Cr.P.C, Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42 : (1960) PLD (SC) 8.

 

—Unless and until two conditions laid down in section 285(1), Cr.P.Code, are satisfied, it would be improper to hold the trial with the aid of less than the requisite number of assessors as provided in section 284, Cr.P.C. In other words, non-compliance with the conditions laid down in section 285(1) constitutes a material irregularity which cannot be cured by section 537, Cr.P.C. Fazal Mohammad Vs. Crown (1955) 7 DLR (WPC) 41.

 

—Failure to observe mandatory provisions of section 286 is not a mere irregularity but illegality, not curable under section 537. Md. Ismail Vs. Slate (1956) 8 DLR (WP) 126.

 

—One prosecution witness was examined after charge—accused not questioned as to'such witness's evidence—illegality not cured by sec.537. Altaf Hossain Vs. Crown 2 P.C.R. 277.

 

—Accused convicted on two different penal sections but the order said nothing under which section the sentence was passed. The irregularity cured by section 537. Md. Abdul Karim Mondal Vs, FazlulBari(1982)34DLR303.

 

—Adoption of a procedure prohibited by Code of Criminal Procedure is not curable by S.537 Cr.P.C. Lai Miah Vs. Stale (1988) 40 DLR 377.'

 

 

5.   Omission.

—Substantial compliance with the manner prescribed by the CodeOmission in observance of detail only an irregularity.

Is it possible to say that where there is a prohibition, expressed or implied, disobedience to it will be fatal to the trial, and where there is a direction, although expressed in the same mandatory language as a prohibition, non-compliance with it will be visited by quashment only if it had prejudiced the trial

 

Held: It is difficult to draw a line in all cases, since almost all provisions as to the trial of offences are expressed in mandatory language, and that it would not be safe to say, as their Lordships pointed out in Kottaya Vs. Emperor, AIR 1947 P.C. 67, that the difference between the two cases is one of degree. The difference is in the manner of trial. If it substantially follows the manner prescribed by the Code, any omission in the observance of detail is an irregularity, and it can be cured. Ibrahim Vs. State (1959) 11 DLR (WP) 138.

 

—Charge—Omitting to state particulars of offence—Death following injuries eaused by accused—trial not vitiated.

Where the circumstances showed that the accused could have been under no illusion as to the pharge they had to defend themselves against and at no stage, during the trial, any exception was taken to the charge, it could not be said that any prejudice was caused to the accused in their defence by the omission of certain words from the charge or that the said omission had occasioned in fact a failure of justice.

The omission was curable under sections 225 and 537 Cr.P.C. Hazrat Jamal Vs. State (1959) 11 DLR (SC) 84 : (1958) PLD (SC) 383.

 

—Omission to read over the witness's deposition cannot be cured under section 537, Cr.P.Code. B. Rahman Vs. W.Molla (1955) 7 DLR 574.

 

—Defect in the frame of charge— Omission to frame two charges in accordance with the first part of S.233, CnP.Code is an irregularity curable u/s 537. State Vs. Abdul Aziz, (1971) 23 DLR 91.

 

—Where the law and the section of the Law are mentioned in the charge, the omission of details is not so material as to prejudice the accused. Abdus Subhan Vs. The State (1967) 19 DLR 927.

 

6. Failure of justice.

—Where the accused was literate and could very well follow the nature of the proceedings against

him, and was also aware of the prosecution case and no miscarriage or failure of justice has been proved in the case, section 537 of the Cr.P.C., would cure it, and, for that reason, no interference is called for by the Federal Court. A Wahab Vs. Crown (1955) 7 DLR(FC)87.

 

—Failure by a Magistrate to require notice to be served on the members of the 2nd party in a proceedings under section 145,Cr.P. Code, is a vital defect. If there had been any error in notices served, that defect would have been cured under sec. 537, provided the error had in fact occasioned no failure of justice. S.Islam Vs. A.Rouf(1951) 3 DLR 202.

 

—Charge—Omitting to state particulars of offence—Death following injuries caused by accused.—Trial not vitiated.

Where the circumstances showed that the accused could have been under no illusion as to the charge they had to defend themselves against and at no stage, during the trial, any exception was taken to the charge, it could not be said that any prejudice was caused to the accused in their defence by the omission of certain words from the charge or that the said omission had occasioned in fact a failure of justice.

The omission was curable under sections 225-and 537 Cr.P.C. Hazrat Jamal Vs. State (1959) DLR(SC) 84: (1958) PLD (SC) 383.

 

—If a Magistrate takes action against a person under section 109 Cr.P.Code, he should make an order under the provisions of section 112 of the Code; in so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an irregularity which is not curable by virtue of section 537 Cr.P.Code. 5 DLR (WP) 109 (112JL-H Col).

 

—Provisions of the section  explained.

The test that may be applied in considering whether a particular infringement of the provisions of the Code does or does not fall within the purview of section 537 appears to be whether the error goes to the root of the trial, whether it vitiates the proceedings, whether the Court assumed jurisdiction whicfi it does not possess, and whether it has broken the vital rules of procedure. In this connection a distinction should be made between a positive enactment by the Code that certain trial shall not take place and a positive enactment that in the course of such a trial certain detailed procedure should be followed. Both are imperative provisions. But still the one is different from the other. In the former case an infringement of the enactment amounts to an improper assumption of jurisdiction and vitiates the trial from the very beginning. In the latter case, the infringement merely amounts to an error, omission or irregularity in the procedure in the course of the trial, and this is curable under section 537 Cr.P.C. The crucial test to be applied is whether the accused had fair trial in spite of the prescribed rule of procedure. Even if there is an illegality the High Court will not interfere except in case of failure of justice.

 

It is important to point out that the provisions of section 537 Cr.P.C. arc mandatory and the High Court cannot interfere without finding that there had been a substantial error or failure of justice due to the irregularity in course of the trial. Where the law and the section of the law are mentioned in the charge, the omission of details is not so material as to prejudice the accused. Abdus Subhan Vs. The State. (1967) 19 DLR 927.

 

—After the decision of the Privy Council in the case of Abdul Rahman 31 C.W.N. 271 section 537 Cr.P.C. may now be taken to cover an error, omission or irregularity in the widest sense of those terms provided there has been no failure of justice. The mere fact that imperative statutory rule of procedure has been broken is not enough to vitiate the trial or proceeding provided there is no failure of justice. Siddique Ahmed Vs. The State, (1985) 37 DLR 223.

 

7.   Miscellaneous.

—Commitment proceedings—Duty' of Magistrate to record defence evidence tendered by accused—Disregard'of duty is an illegality resulting in quashing of the commitment—such disregard not curable under section 537 Cr.P.C. Shal Khan Vs. State (1959) 11 DLR (WP) 65 : (1959) PLD (Lah) 55.

 

—Provisions of section cures violation of mandatory provisions which are merely directory but cannot cure those which are prohibitory, that is which are 'must not1 Mohammad Sajjad Vs. State (1960) 12 DLR (WP) 55 : (1960) PLD (Lahore) 520.

 

—Irregularity and illegality—distinction between them is one of degree rather than of kind-conviction fails only when there is prejudice to the accused. Phut Chand Vs. Jewan Sk. (1956) 8 DLR 277.

 

—The statement under section 289(1) that no defence evidence would be adduced was made nolby the accused but by his advocate.

 

Held: This was a contravention of the statute but it is clear that it is an irregularity which in the absence of prejudice does not vitiate the trial. Lalan Vs. Crown (1955) 7 DLR (FC) 139.

 

—Judgments—Compliance with any prescribed form, if indispensable—Judgments, if show appreciation of the points for decision, their consideration as well as reasons for findings, are proper judgments—failure to follow prescribed form curable under section 537. Montazuddin Vs. A. Rahman (1957) 9 DLR 122.

 

—Where the non-compliance with the provisions of the Code of Criminal Procedure is with regard to matter of a formal character, the result is an irregularity curable by section 537, of the Code, but where the non-compliance amounts to a serious and substantial disregard of the provisions of the Code relating to the mode of conducting a trial, the result is an illegality. Noor Din Vs. Crown 2 PCR 135.

 

—A trial in contravention of the relevant provisions of Chapter XIX of the Code of Criminal Procedure is illegal and sec.537 of the Code of Criminal Procedure cannot be invoked. Noor Din Vs. Crown 2 PCR 135.

 

—Date of offence stated as 6th May, 1951 or near about—precise date of misappropriation not fixed—Defect curable under sec.537. Alauddin Vs. Ramzoo (1955) fDLR (WPC) 34.

—Where inadmissible evidence has been admitted in a trial by jury the High Court may, after excluding such evidence, maintain the conviction, provided the admissible evidence remaining is, in the opinion of the Court, sufficient clearly to establish the guilt of the accused. Azharuddin Vs. Crown (1950) 2 DLR 380.

 

—The jurisdiction of the Court is not ousted merely because the report was submitted by a police officer who was not authorised to investigate. Infringement of the proviso to section 3. Prevention of Corruption Act, should be regarded merely as an irregularity falling within the ambit of section 537. (1955) 7 PLD(Lah) 667.

 

—Failure to frame a charge in a summary trial in which an appealable sentence has been passed will not vitiate the trial. Saffar Mallik Vs. Crown (1952) 4DLR364.

 

—Non-compliance with the provisions of the Code as regards mode of trial—Not remediable— Court must necessarily intcrfer even under its revisional jurisdiction. (1949) 1 PLD (Lah)574.

 

—No   reference   to   the   opinions   of assessors—The fact that no reference to the opinions is made in the judgment must be considered as an irregularity, though curable under the provisions of section 537, Criminal Procedure Code. (1951) 3 PLD (Bal) 25.

 

—The impropriety in the constitution of a Bench is not curable under section 537 but it is an illegality which vitiates the trial of a case. G. Rasul Vs. Crown (1951) 3 DLR (FC) 161.

 

—Personal knowledge of the Magistrate cannot be imported—A Magistrate cannot, without giving

evidence as a witness, import into a case his knowledge of particular facts. A Kadir Vs. K. Rahman (1956) 8 DLR 718.

 

—A Magistrate is competent to see for himself the local features in order to follow the evidence recorded by him in court, but certainly he is not competent to use the materials gathered from persons whom he happens to meet in deciding the truth or otherwise of the case. Any such importation of personal knowledge in the judgment by a Magistrate without being a witness is illegal and the defect is not curable by section 537 of the Criminal Procedure Code. A: Kadir Vs. K. Rahman (1956) 8 DLR 718.

 

S.539A—The deponent affirmed that the statements embodied in the affidavit is true to the best of his "knowledge and belief and information" without specifying the exact portions true to his "knowledge or information or belief.

 

Held: Such an affidavit is really no affidavit in accordance wi'th the law and should not have been accepted. Alhaj Aley Mohammad Akanda Vs. State (J962) 14 DLR 39.

 

S. 539B—A local inspection under section 539B of the Code is only permitted for proper appreciation of evidence but that cannot take the place of evidence. Bazal Ahmed Sowdagar Vs. Nur Mohammad Sawdargar (1962) 14 DLR 741.

 

S.539B : Local enquiry—memorandum of the relevant facts—A Magistrate holding a local enquiry acts in contravention of the mandatory provisions of section 539B of the Criminal Procedure Code if he makes no memorandum of the relevant facts he observed at .the time of his inspection. (1953) 5 DLR 112.

 

S.540 : Prosecution wanted to examine a witness in the Court of Session on the ground that he was an important witness who rescued the girl from the house of the accused, though the prosecution did not examine him in the committing Court. This witness was examined with the consent of the Court.

 

Held: Since the prosecution has stated the reasons why it proposed to examine this witness, his evidence cannot be objected to. Habibur Rahman Vs. Crown (1954) 6 DLR 361 (365)

 

—-Court by virtue of its power under section 540 cannot summon a person to probe into his own conduct   and   obtain   admission   from   him. Dr.M.Abdul Sami Vs. State (1962) 14 DLR (WP) 1 : (1962) PLD(Lah) 271.

 

— Examination of witnesses discretionary with the Court—Superior Court entitled to be satisfied that the discretion has been properly exercised.

Court is always reluctant to interfere with discretion of the trying Magistrate in the matter of summoning or not summoning a witness for the purpose of examining him under section 540 of the Code so long as it is found that it had been exercised with due consideration of the facts and circumstances of the case before him. A Superior Court had, however, to be satisfied that there has been a proper and judicial application of mind in the exercise of the discretion by a Court of law.

 

But where the Magistrate has merely said that he does not find any good reasons for examining the witnesses at this stage it does not indicate a proper application of mind as to whether the examination of these witnesses is essential for a just decision in the case or whether some obscure points can be clarified by these witnesses. Nikiinja Behari Das Vs. Nurul Absar (1962) 14 DLR 200.

 

—Fresh   witness   can   be   examined only under the section.

When, before the charge is> framed, the list of persons who may be able to give evidence for the prosecution has been ascertained under section 252(2), no fresh witnesses can be examined by the prosecution under section 256 after the charge is framed and the prosecution can only apply to the Magistrate to examine them under section 540 under which the Magistrate has a discretion in the matter. Phul Chand Vs. Juran Sk.(1956) 8 DLR 277.

 

—Accused not always entitled to rebut evidence taken by Appellate Court.

An accused person is not as of.right entitled to rebut all evidence that may be taken by the Appellate Court in exercise of its powers under sections 428, 375 and 540 of the Code. Fazal EM Vs. Crown (1953) 5 DLR (WPC) 13 (24 rt-h.Col.)

 

—Witnesses where examined under the section—Although it is not obligatory on a Magistrate to re-examine an accused person under section 342 of the Cr.P.Code after the Magistrate has examined court witnesses under section 540 yet, where the witnesses examined were not formal witnesses nor was their evidence immaterial, the accused should have been re-examined and afforded an opportunity of making any statement with regard to the evidence of these witnesses. 53 CWN (IDR) 35.

 

— Summoning of witness-Discretionary. Summoning of witnesses under section 540, is discretionary under both the parts of the section. It is incumbent under the second part only if the Court is satisfied that evidence of such witnesses is essential. (1955) PLD (Bal) 12.

 

—Exemption of the accused from attendance in a warrant case—Court has got inherent power to pass such an order. Nalini Kama Sen Vs. MSiddiq (1962) 14 DLR 355.

 

 

—Accused's presence—when his presence cannot be dispensed with.

The law, it is true, provides for a trial to proceed in the absence of the accused but the section does not permit the trial to proceed without the presence of the accused at stages where, under the law the presence of the accused is imperative. One of these stages is when the accused is required to be examined in accordance with the provisions of section 342, Criminal P.C. The Court cannot dispense with the presence of the accused at this stage. Arshad Mirdha Vs. Tansaruddin Molla (1952) 4 DLR 429.

 

—Right of cross-examination—Right to recall witnesses—

New law does not interfere with the accused's right of cross-examination, but affects only a procedural change—Accused not entitled as of right to recall P.Ws,—Application of section 540 Cr.P.Code in suitable cases. Right of an accused person to defend himself includes the fundamental right of cross-examination of the prosecution witnesses. The right to recall witnesses already examined before the charge really matures into a vested right only when a charge is framed. Where such a contingency arose after the amendment of sections 256 and 257 of the Criminal Procedure Code, the view that the fundamental right of cross-examination has not been interfered with by the new law and only a procedural change has been effected which cuts down a further facility for cross-examination not affecting the substance of right has much to commend itself. The new law should not be held even in a pending case and the accused should not be held entitled, as of right, to recall witnesses already examined before the charge. The right of the accused is really one of being tried according the procedural law current for the time being.

 

The consideration, however, would be pertinent whether ihe_jccused in a particular case is likely to suffer some"prejudice because he might have, in view of the old law, reserved some important questions in the cross-examination of the witnesses for a stage after the. charge, if need be. Such a possibility cannot be entirely excluded, though this may not involve invasion of the fundamental and substantial right of cross-examination. To meet such a possible contingency of prejudice, the provisions of section 540 of the Code of Criminal Procedure could very properly be invoked in a suitable case. The Stale Vs. Moulvi Muhammad Jamil, (1968) 20 DLR (SC) 315.

 

—Trial   begins with the framing  of charge.

Court's power to summon witnesses for examination u/s.€40 after the accused has been examined u/s.342 and after the arguments of both the sides were heard—In other words, court's power to summon witnesses at any stage of the trial—Trial begins with the framing of the charge and ends with the passing of the judgment. The question that arises now is: When the aid of section 540 of the Code of Criminal Procedure can be invoked The section says, "at any stage of any enquiry or trial or other proceeding under this Code." In the instant case we are concerned with the trial of the case. In our opinion the trial of a case begins with the framing of the charge and ends with the passing of the Judgment. Joynal Gazi Vs. The State (1983) 35 DLR 422.

 

—Examining prosecution witnesses as Court witnesses Magistrate has power to summon material witness whose relevance is disclosed in evidence, but he cannot examine them as Court witness—Magistrate's order has been modified accordingly. Helaluddin & ors, Vs State (1988) 40 DLR 352.

 

—Scope of s.540 consists of two parts—the first part is discretionary and the second part is obligatory. Md. Jalaluddin Ahmed Vs. State (1988) 40 DLR 564.

 

—It is obligatory for the Court to allow the examination of witness it he thinks it essential for the just decision of the case. The accused will not be prejudiced if the witness is examined in the Court. Md. Jalaluddin Ahmed Vs. State (1988) 40 DLR 564.

\

S.540A—Applicability of section 540A in regard to exemption of the accused from attendance. This provision regarding dispensation with the personal attendance of accused person in Court are not applicable to a Court where there is only a single accused against whom a warrant of arrest has been issued at the first instance. NalinlKanta S,en Vs. M. Siddiq (1962) 14 DLR 355.

 

1875

Constitution of Pakistan, 1962 -33

Citation: (1956) 8 DLR (SC) 128, (1959) 11 DLR (SC) 91; (1958) PLD (SC) 317, (1955) 7 DLR (FC) 211 (232), (1951) 3 DLR (FC) 161, (1955) 7 DLR (FC) 211 (231-232, (1952) PLD (Lah) 282 :.(1952) PLD (Lah) 415, (1972) 24 DLR 217, (1966) 18 DLR (WP) 97, (1973) 25 DLR 2

Subject: Constitution of Pakistan

Delivery Date: 2018-09-25

S.549 : Court's power to try offenders, when barred. Person triable as an offender by a Court Martial—that ousts the jurisdiction of the Magistrate for his trial—Magistrate bound to deliver him to the authority concerned—Bar as regards trial of such offender extends to the Court of Sessions and the High Court. Sk.Ibrat Vs. Commander-in-Chief (1956) 8 DLR (SC) 128.

 

S.556: The fact that the Magistrate tendering pardon was a friend of the father of the accused pardoned does not for that reason, disqualify the Magistrate. Rafiq Ahmed Vs. State (1959) 11 DLR (SC) 91; (1958) PLD (SC) 317.

 

—No Judge can be a judge in his own case. Or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice not only be done but seen to be done. Instances of bias are recognisetfin section 556. Anwar Vs. Crown (1955) 7 DLR (FC) 211 (232) l.h.col.

 

—Appeal against acquittal on the advice of the Legal Remembrancer who afterwards becoming a Judge was a member of the Bench which heard and disposed of that appeal—Illegality in the constitution of the Bench. G. Rasul Vs. Crown (1951) 3 DLR (FC) 161.

 

—The impropriety in the constitution of a Bench is not curable u/s.537 but is an illegality which vitiates the trial of a case. G. Rasul Vs. Crown (1951) 3 DLR (FC) 161.

 

—Bias affects fair trial—Bias or influence operating in a Judge affects fair trial—Where decisions are correct, external evidence of bias or influence, however strong, has no validity, subject to exceptions provided in sec.556. Anwar Vs. Crown (1955) 7 DLR (FC) 211 (231-232).

 

—Once the mind of the trial Judge has been vitiated by bias, the proceedings in the Court of such a Judge have no legal validity whatsoever. Khairdi Khan Vs. Crown (1952) 5 DLR (FC) 185 (194 nh. col.)

 

—Magistrate reporting case to police—Not considered personally interested in it—May try the case.

The Magistrate had reported loss of property to the police and suggested that some official might be found to have taken it. It was contended that he could not try the case after having expressed that opinion in the matter.

 

Held: The report was not bar to the Magistrate's trying the case because he had not expressed any opinion on merits in the case. Moreover, he was not personally interested in the case. Crown Vs. Muhammad Razzak (1952) PLD (Lah) 282 :.(1952) PLD (Lah) 415.

 

—Recording of confessional statement and holding of trial by the same Magistrate not illegal and not hit by section 556 of the Code. The Stale Vs. Lutfor Fakir, (1972) 24 DLR 217.

 

—Transfer of a case is called for when the Magistrate who has been abused by the Court, tries case himself. Nezar Muhammad Vs. State, (1966) 18 DLR (WP) 97.

 

—Trial Magistrate in the course of trial found evidence of offence punishable under section 215 P.P.Code by one N not on trial and sent the case record to the S.D.M. to take necessary action against N. The S.D.M. acting under section 190(I)(c) Cr.P, Code on receipt of the case record and on perusal of it including the evidence on record issued warrant of \rrest against N and on his surrender sent t.hc case i ck to the same Magistrate for trial of N. The learned Magistrate on trial convicted and sentenced N to a certain term of imprisonment—objection that by laying the complaint to the S.D.M. the trial Magistrate, disposing of the case without permission of the appellate Court, offended the provisions of s.566, CrP.Codc and this has vitiated the trial over-ruled. Nezamuddin Vs. The Stale, (1973) 25 DLR 216.

 

S.557 : Trial of accused by the Magistrate who recorded the confession—Bad in law— Magistrate personally interested. (1957) PLD (Pesh) 128.

 

S.558: Under section 558, the Provincial Government may determine what shall be deemed to be the language of a Court other than the High Court. Obviously that would be the language, if the choice has been made under the section, in which the petitions to be presented to the Court have to be expressed in order to be officially acceptable and the record of evidence would also be normally required to be'kept in that language, as directed by section 356 of the Code. Hazrat Jamal Vs. Slate (1959) 11 DLR (SQ84.

S.561A—Courts can order restitution of property to rightful person even where property had already been delivered to some other party—High Court had also inherent power under section 561A to order restoration of property in such cases. Gulam Akbar Vs. State (1959) 11 DLR (WP) 14 : (1958) PLD(Lah.)212.

 

—Abuse  of the  process  of a   Court.

Prolongation of proceeding inside the Court over a long period constitutes an abuse of the process of Court, within the meaning of section 561A of the Code, if the prolongation is occasioned by unnecessary adjournment. Such unnecessary adjournments do constitute abuse of process of Court. But a delay in instituting proceedings for want of legal sanction, or want of completion of investigation stands on a different footing.

 

If for any good reason a delay of a long period has intervened between the commission of the offence and the institution of the proceedings that delay should not always be allowed to operate as a bar against prosecution. Mohammad Raft Parvez Vs. State (1960) 12 DLR (WP) 73 : (1960) PLD (Lah) 936.

 

—Restoration  of possession  of land—

Section 522, Criminal Procedure Code, does not authorize the Court to restore the possc'ssion of the land to the accused, if the latter is acquitted by a Higher Court. In case of acquittal, on revision, by the High Court in the exercise of its inherent powers under section 561A. Qaribullah Vs. Ismail Khan (1955) 7 DLR (WPC) 60.

 

—Restoration of appeal—inherent power. Advocate unable to attend Court on the date duly notified for hearing—The High Court has no inherent powers to set aside the judgement and order for restoration of appeal. Sono and two others Vs. Crown (1956) 8 DLR (WPC) 116.

 

—Clerical errors, correction of clerical errors can be corrected by a High Court under inherent powers.

Words "hanged by neck till convict is dead" omitted from judgment inadvertently—Amounts to clerical error—Can be corrected by the High Court. Crown Vs. Habibullah (1953) 5 DLR (WPC) 71.

 

—In case of acquittal, on revision by the High Court, possession of the land ma# be restored to the accused by the High Court in the exercise of its inherent powers under section 561A,Cr.P.C. Qaribullah Vs. Ismail Khan (1955) 7 DLR (WP,) 60.

 

—The inherent power vested in a High Court under section 561A, can.only he exercised in cases which are not covered by the express provisions of the Code where justice has to be done. (1950) PLD (JK)W.

—A criminal proceeding shall not be allowed to continue until the decisions of a civil suit provided that it is not a public prosecution and the same subject-matter has been brought before a Civil Court earlier than the complaint. 2 PLD (BJ) 76.

 

—Powers can be exercised only when there is no other express provision of law governing case. 3 PLD (Bal) 45.

 

—High Court has no inherent power to grant bail apart from express terms of the Code. 1 PLD

(Lah) 21.

 

—Delay as a ground for quashing prosecution—how far justified— Expression "abuse of the process of Court" and "ends of justice-" explained. The view that time is of- the essence for the competency of the criminal prosecution cannot be accepted as of universal application. Limitation does not apply to criminal proceedings, as in civil matters. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare ease that a superior Court acting under its inherent power to prevent abuse of any Court or otherwise to secure the ends of justice, would deem it appropriate to act so to place an alleged offence outside the operation of the criminal law, on grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law.

 

"Abuse” as attracting the inherent power of the Court, must be "abuse of the process of any Court", and the investigation stage is, generally speaking, outside the purview of the Court, and rarely involves employment of any Court process. It is difficult to include the action of investigating agencies within the scope of judicial process. To quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, the proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse", it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perVerse results. M.S.Khawja Vs. State (1965) 17 DLR (SC) 153.

 

—Charge framed under section 420 P.P.Code— Accused acquitted of that charge—Upon the same allegation fresh charge was framed under section 468—Proceeding quashed. Abdul Jalil Vs. State (1963) 15 DLR 70.

 

—Inherent powers to be exercised in extraordinary cases.

The jurisdiction under section 561A is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available and cannot be utilised where there is other express remedy provided by the Criminal Procedure Code. Muhammad Samiullah Khan Vs. State (1963) 15 DLR (SC) 150.

 

—Appellate powers cannot be exercised nor sentence can be enhanced.

In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of Appeal nor can it enhance sentence nor can it even reconsider the question of sentence. Mohammad Samiullah Khan Vs. State (1963) 75 DLR (SC) 150.

 

—Issue of distress warrant by the District Magistrate for realisation of fine is not an act in his executive capacity but as a Court and, therefore, the High Court has the right to interfere under section 561 A. Haji Matiar Rahman Chowdhury Vs. State (1961) 13 DLR 731: (1962) PLD (Dae) 238.

 

Objectionable remarks—removal of— from judgment.

Objectionable remarks to be made in the judgment of a Court against a person who was not a party to the proceedings nor a witness in the case.

 

Held: The High Court directs the cxpunction of such remarks. Director of Pak. Flotilla Co. Ltd. Vs. Abdus Salam (1962) 14 DLR 23.

 

—Inherent jurisdiction should not normally be invoked where another remedy is available—A long time passed from the initiation of proceeding is no ground for quashing the proceeding—Purpose of section 561A is to redress grievances when no other remedy available.

 

One of the reasons for invoking the inherent jurisdiction of the Court is that no other remedy is available for obtaining justice,in the cause. It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved .to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice.

High Court should not generally quash a case when a competent Court has found on the basis of evidence that aprimafacie case has been made out.

 

The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examinirrg the evidence adduced before it, come to the view that a prima facie case is disclosed and had framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. Ghulam Muhammad Vs. Muzammal Khan, (1967) 19 DLR (SC) 439.

 

—The petitioners have prayed for quashing the proceeding invoking inherent jurisdiction of this Court. The power to be exercised under section 561A Cr.P.C. is highly discretionary. Such an extraordinary and discretionary power cannot be exercised in favour of the persons who have themselves disrespected the Court complained of. Mr, A. K. Khan Vs. The Chairman, 2nd Labour Court (1973) 25 DLR 192.

 

—Quashment of criminal  proceedings.

Writ petition intending to forestall in intended investigation and prosecution on the basis of an F.I.R. made by a person who allegedly was not competent to report the matter to police was held to be misconceived. Therefore, provision of section 561A Cr.P.C. for quashment of criminal proceedings is applicable to the,present case. Muhammad Hayat Vs. The Chief Settlement and Rehabilitation Commissioner. (1971) 23 DLR (Lah.)34.          

 

—Quashment of a proceeding at the early stage The case being at the complaint stage, the State was not concerned as a party, and the latter intervention-could be thought to have an element of officiousness. Quashment of proceedings at so early .a stage (when the case was merely at the complaint stage) gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice in the forms provided by law. It is necessary that these cases should be examined further, to ensure that the course of even-handed justice has not been prejudiced. Raja Haq Nawaz Vs. Mohammad Afzal, (1967) 19 DLR (SC) 369.

 

Quashment   of  Criminal   Proceeding

Proceeding cannot be quashed on bare ground that the complaint does not reveal commission of any

offence. Md. Ehsan Vs. State, (1968) 20 DLR (WP) '733.

 

—Quashment of proceeding against certain persons when the investigation not yet complete even though the F.I.R. mentioned no name nor witnesses so far examined did name them—Held: Not proper.

Two persons were murdered, but none of the witnesses knew or recognised who the murderers were. The inability of the witnesses to name or recognise the assaillants for the time being cannot lead to the conclusion that the F.I.R. did not disclose the commission of the offence. In these circumstances, the least we can or should do is not to interfere with the investigation being carried on by the police. We are, therefore, unable to quash the impugned proceedings. Tozammel Hossain Sarder Vs. State (1975) 27 DLR 36.

 

— Quashing of proceedings allowable if no offence of any kind disclosed.

When no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to undertake investigation. Abu Tayab Md. Mashood Vs. State (1975) 27 DLR 93.

 

—The High Court Division acting u/s. 561A has no jurisdiction to quash proceedings pending before a Special Tribunal constituted u/s.26 of the Special Powers Act. Salimuddin Ahmed Vs. The State (1976) 28 DLR 187.

 

With this Amendment, jurisdiction of the High Court Division over a Special Tirbunal has been completely ousted. The High Court Division has no jurisdiction u/s.561A of the Cr.P.C. to quash a proceeding before a Special Tribunal under the Special Powers Act, 1974, particularly after its Amendment. Salimuddin Ahmed Vs. The Stated 976) 28 DLR 187. [overruled in 32 DLR (AD) 1].

 

—Exercise of power under section 561A —Per Bhattacharya, J.The Chief Justice, and Justice Ahsanuddin Chowdhury, Kemaluddin Hussain and Fazle Munim disagreeing. Power as envisaged in S.561A of the Cr.P.C. is an extraordinary power which is inherent in the High Court for doing justice but such power is to be used extremely cautiously and that solely for advancing the cause of justice. It is also a statutory principle that a criminal proceeding started against certain person should not be thwarted or interrupted at an interlocutory stage but should be allowed to proceed to the final determination by the court as to the guilt or innocence of the said person according to the relevant law applicable to the case. In an appropriate case, however, the court should not be deterred from exercising the said powers, if such exercise serves the cause of justice. Abdul AH Vs. State (1978) 30 DLR (SC) 58.

 

Police report does not show the accused committed any offence under M.L.R.I1 of M.L.R.l of 1975. Proceeding against such accused must be quashed. Abdul All Vs. State (1978) 30 DLR (SC) 58.

—Exercise of its inherent jurisdiction under section 561A by the High Court depends on the facts of each case—Its interference at the initial stage of a proceeding pending before a Court conditioned by the absolute necessity for such interference.

 

But a pertinent question may be posed as to when and under what circumstances the said jurisdiction can and should be exercised by the High Court. The consensus of judicial opinion is that it is not possible, desirable or expedient to lay down any inflexible rule which should govern the exercise of this inherent jurisdiction. The exercise of this jurisdiction will depend upon the facts and circumstances of each case. Interference even at an initial stage may be justified where the facts are so preposterous that even on the admitted facts no case can stand against the accused and that a further prolongation of the prosecution would amount to harassment to an innocent party and abuse of the process of the Court. Abdul Quader Chowdhur} Vs. The State (1976) 28 DLR (AD) 38.

 

Categories of cases for quashing of trials before trial court indicated when High Court's inherent jurisdiction u/s.561A can be exercisedDistinction between absence of evidence, legally unsustainable or inconsistent with prosecution version and presence of legal evidence but contended as not enough to base a conviction.

Some categories of cases may also be indicated where the inherent jurisdiction can and should be exercised for quashing the proceeding. There maybe cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice.

 

If the criminal proceedings in a particular case is in respect of an offence alleged to have been committed by accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings the High Court would be justified in quashing the proceedings on that ground."

Cases may also arise where the allegations in the First Information Report of the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court lo hold that it would be manifestly unjust to allow process of the criminal court to be issued against the accused person.

 

A third category of cases in which the inherent jurisdiction of the High Court can be invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may not support the accusation in question. Abdul Quader Chowdhury Vs. The State (1976) 28 DLR (AD) 38.

 

—Weighing of evidence of a case pending before a trial court and inference therefrom is the function of the latter court and not a matter which calls for High Court's interference u/s,561A. In exercising the jurisdiction under section 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. Abdul Quader Chowdhury Vs. The Stale (1976) 28 DLR (AD) 38.

 

—Resort to the inherent powers of the High Court to quash proceedings u/s.561A when barely two months had passed since the start of investigation and the collection of evidence by the police was not complete, deprecated. Govt. of Bangladesh Vs. A.T.Mridha(1974) 26 DLR (SC) 17.

 

—Quashing   of  proceedings   not   legally' permissible when investigation by police is pending and further when some cognizable offence is disclosed in the F.I.R. In these circumstances the Division Bench of the High Court was moved for quashing the proceedings pending before the Magistrate, under sec.561 A of the Penal Code.

 

Held: The Court in this state of things is unable to interfere with the impugned proceedings, firstly, because no charge-sheet has yet been submitted in this case, and secondly, because the learned Advocate for the petitioner could not show that the First Information Report did not disclose the commission of any offence. Abu Tayab Md. Mashood Vs. The State (1975) 27 DLR 93.

 

—Scope and import of the section explained. It has sometimes been thought that section 561A has given increased powers to the Court which it did not possess before the section was enacted but this is not so. The section gives no new powers it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers- possessed by the Court arc those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing •of that Act. M.G.Towab Vs. State (1982) 34 DLR 371.

—Court's authority to interfere with prosecution's right under the provisions of s.561 A is extremely limited. Quashing of criminal proceeding implies that allowing such proceeding to go on would perpetuate injustice. M.G.Towab Vs. Stale (1982) 34 DLR 371.                         

 

—Usual course of administration of criminal justice should rarely be interrupted. M.G.Towab Vs. Slate (1982) 34 DLR 371.

 

—Under sec.561A to quash proceedings the High Court will not scrutinise the truth or otherwise of these documents. M.G.Towab Vs. State (1982) 34 DLR 371.

 

—Delay in starting prosecution is not a ground for quashing a proceeding u/s 561A as law of limitation not applicable to criminal cases— Malafide motive becomes irrelevant when offence is proved. M.G. Towab Vs. State (1982) 34 DLR 371.

 

—The FIR and the charge-sheet of the case if give out certain materials and circumstances from which commission of the offence charged becomes a possibility, the High Court Division will not quash the pending proceedings on the ground that there is no evidence for the court to go upon. M.G.Towab Vs.Slate(1982)34 DLR 390.

 

—Resort to section 561A not permissible when the court has before it FIR and the charge-sheet. M.G.Towab Vs.State( 1982)34 DLR 390.

 

—High Court Division reluctant on the materials before it to go into the question of guilt or innocence of the accused u/s,561 A.

 

At the time of trial (which is now pending before the Special Judge) the evidence will be produced by the prosecution as well as by the defence and it will be seen whether the accused petitioner dishonestly obtained any undue pecuniary advantage, etc. At this stage it is premature to go into the merits of the case and arrive at any conclusion on the facts in issue. The question whether the accused dishonestly obtained undue pecuniary advantage by abusing his official position as a public servant will be decided at the time of trial and at this stage it cannot be said that the prosecution case in this respect is preposterous and is a case of no evidence or on admitted facts it discloses no offence, llasanuddin Sarkar Vs. Slate (1982) 34 DLR 287.

 

—Production of new materials and documents spurious or otherwise when the case is before the High Court Division under section 661A Cr.P.Code disapproved. It is unfortunate that there is a tendency in this country that accused petitioners will produce new materials including copies of spurious and antedated or genuine documents On their behalf and ask this Court under section 561A Cr.P.C. to embark upon an enquiry to determine the guilt or innocence of the accused petitioner which is beyond the scope of the said provision of law. llasanuddin Sarkar Vs. State (1982) 34. DLR 287.

 

High Court Division's interference when not called for.

Before the trial has been gone through, this Court under section 561A Cr.P.C. cannot give any finding whatsoever as to whether the accused petitioner dishonestly obtained any pecuniary advantage either for any person or for himself by corrupt or illegal means or otherwise by abusing his position as public servant. In exercising power under section 561A Cr.P.C. this Court cannot embark upon an enquiry into facts and come to a decision in respect of fact either in favour of or against, the' accused petitioner. llasanuddin Sarkar Vs. Stale (1982) 34 DLR 287.

 

—High Court's power of invoking inherent power u/s. 561A examined and explained.

Section 561A emphasises that the High Court has the jurisdiction to pass orders to secure the ends of justice and for that purpose the High Court is competent to entertain applications not provided by the Code. However, it must be clearly understood that the terms of section 561A of the Code do not extdnd the jurisdiction of the High Court to matters which are not inherently within that jurisdiction. The High Court also can not claim inherent jurisdiction to exercise powers taken away by legislation. When exercising this jurisdiction, the High Court would not embark upon an enquiry whether the evidence in question is reliable or not. This is the function of the trial magistrate and it might so happen that quashment of a criminal proceedings before commencement of trial would amount to stifling the proceedings before the prosecution got an opportunity to bring evidence in support of the accusation.

 

Court might be acting on treacherous grounds in quashing criminal proceedings at the interlocutory stage or at the early stage on the ground that continuation of the proceedings would be an abuse of the process of the Court. Bangladesh Vs. Tan Kheng Hock (1979) 31 DLR (AD) 69.

 

—Unusually       long       delay       in commencing    the    trial—a    ground    for quashing the proceeding u/s.   561A.

When a case drags on for years together, for no fault of the accused and the delay in the trial is shocking to the very basis of justice, proceeding may be quashed. Md. Shafique Vllah Vs. The State (1981) 33 DLR 297.

 

—Exercise of inherent power u/s 561A by the High Court to secure ends of justice is dependent on the facts and circumstances of each case. Quashing of proceedings immediately after submission of charge-sheet disapproved.

There is no doubt that in exercise of the powers under section 561A of the Code of Criminal Procedure the High Court has ample inherent powers to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. But the exercise of the inherent power must necessarily depend on the facts and circumstances of each particular case.

 

The practice of quashing the proceedings immediately after submission of the charge-sheet has been disapproved in clear terms by the Appellate Division of this Court in the case of Bangladesh Vs. Tan Kheng Hock reported in 31 DLR (AD) 69. Abul Bashar Talukdar Vs. Slate (1980) 32 DLR 182.

 

—Legal bar against institution of a criminal proceeding—Exercise of power u/s 561A lawful.

There might also be cases where it appears that there is a legal bar against the institution or continuance of the proceedings; in which case the High Court would be justified in quashing the proceedings by exercising its inherent power under section 561A of the Code. Bangladesh Vs. Tan Kheng Hock (1979) 31 DLR (AD) 69.

 

—So far quashing is concerned, it could not be said that the prolongation of the prosecution would be an abuse of the process of the Court. Salimuddin Ahmed Vs. The State (1980) 32 DLR (AD) 103.

 

—Expression "abuse of process," what it means.

The expression "abuse of process" in section 651A means in effect any thing done by the Court. The powers given under section 561A are not more extensive than those which it has under its inherent power. They are extraordinary in their nature and arc exercised ex-debito justiciae, that is to say, for the purpose of doing that real and substantial justice for the administration of which the courts of law exist. The object of S.561A is to remove any doubt that the Court's powers are not exclusively circumscribed by the Code itself. The inherent jurisdiction is attracted firstly, "to make such orders as may be necessary to give effect to any order of the Code." Secondly, "to prevent abuse of the process of any Court" and lastly, "otherwise to secure the ends of justice." In the instant case the inherent jurisdiction under the first category is not attracted. "Any" means and indicates a person, thing, event, etc. as not particular or determinate individual of the given category. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—High Court's jurisdiction under the section. Section 561A emphasises that the High Court has widest jurisdiction to pass orders to secure the ends of justice. The High Court under this section has the power to entertain applications which are not contemplated under other provisions of the Code. High Court Division's inherent power under Section 561A is exerciscable as under the powers conferred upon- it by the provisions of the Constitution. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—Limit of the power exercisable by the High Court Division in its inherent power u/s 561A.

The High Court Division quashed the proceedings in exercise of its inherent power under section 561A of the Code of Criminal Procedure, soon after submission of the charge-sheet but before cognizance of the offence was taken by the court competent to try the case. The question for decision is whether the High Court was justified in quashing the proceeding U/S.561A, Cr.P.Code at a stage when only the charge-sheet was submitted before the S.D.O. who in view of sections 156(8) and 156(8A) of the Customs Act read with sec.25B of the Special Powers Act was not competent to take cognizance of the case. The High Court Division interfered u/s 561A of the Code on the view that it is competent to examine even at the stage of submission of charge-sheet, whether the ingredients of the offence for which the charge-sheet is being submitted are present or not. Section 561 A docs not confer a new power upon the High Court. Its inherent powers are much controlled by principle and precedents as are its expressed powers conferred under the statute. The High Court can not exercise its inherent power unless it is absolutely necessary for carrying out the other provisions of the Code or for doing justice, that is, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Bangladesh Vs. Tan Kheng Mock (1979) 31 DLR (AD) 69.

 

—"Ends of justice"—explained with reference to police investigation.

"The ends of justice" to secure which the inherent power may be invoked have reference to the purposes which the judicial process is intended to secure and it does not include the action of the investigating agencies within the scope of the judicial process. Bangladesh Vs. Tan Kheng Hock (1979)31 DLR (AD) 69.

 

—High Court Division can exercise a limited jurisdiction in proceedings before Special Tribunal.

Jurisdiction conferred upon the High Court by section 561A Cr. P. Code can be exercised by it to achieve purposes mentioned therein, namely,

 

(a)  to give effect to any order under the Code or

(b)  to prevent the abuse of the process of any Court or

(c)  to secure the ends of justice.

 

Further, the section conferred no new powers, but merely declares that no provision of the Code is to be deemed to limit or affect the inherent powers of the High Court Division. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—High Court Division's jurisdiction u/s 561A. over the proceedings of Special Tribunal remains unaffected by the Martial Law Proclamation of 24lh March 1982. Baidyanath Kar Vs. State (1984) 36 DLR 240.

 

— Condemning a person unheard unjust—Adverse remarks against a third party should not be made without giving him an opportunity of being heard—Saddling a person wilh liability to pay without hearing him improper.

Judge who condemns a man unheard acts unfairly—High Court Division has jurisdiction to expunge the adverse and disparaging remarks. M. S. nurul Alam Vs. The State (1986) 38 DLR 333.

 

—Quashing of proceeding before trial starts—when important.

When exercising this jurisdiction (under section 561A Cr. P.C.) the High Court would not embark upon an enquiry whether the evidence in question is reliable or not. This is the function of the trial Magistrate and it might so happen that quashment of a criminal proceedings before commencement of trial would amount to stifling the proceedings before the prosecution got an opportunity to bring evidence in support of the accusations. Farruk Ahmed Vs. Abdul Kader (1986) 38 DLR (AD) 18.

 

—An application for quashing the proceeding I     pending before the lower Court would not lie when commission of some offence is disclosed in the FIR. Salema Khatoon & ors. Vs. The State (1986) 38 DLR348.

 

—When a prima facie case has been disclosed and cognisance taken, this Court would not embark upon an enquiry whether the allegation is reliable or not. Salema Khatoon & ors. Vs. The Stale (1986) 38DLR348.

 

—Ils provision can be invoked to prevent abuse of process of court or to meet ends of justice. When Sessions Judge acting u/s. 439A passes an order which amounts to abase of the process of court, the High Court Division under section 561A can set aside that order. Sultan Ahmed Malbar Vs. The State \1985) 37 DLR 185.

 

—It will be an abuse of the process of law when the complaint does not disclose any offence and the dispute can at best be a civil one. Abul Hasnat Vs. Hasan Ali (1987) 39 DLR 375.

 

—When inherent power of the High Court can not be invoked—The High Court would be extremely reluctant to interfere in a case where a competent court came to the view that a prima facie case is disclosed and had framed a charge in view of that prima facie case, unless, it could be shown that the charge-sheet on its face, even if believed, did not disclose any offence. Abul Hasnat Vs. Hasan Ali (1987) 39 DLR 109.

 

—Quashing of proceeding—when can be ordered.

Having come to the conclusion that the prosecution under sections 420 and 406 of the Penal Code cannot be maintained, the question is whether the proceedings are liable to be quashed. In case of Abdul Quader Chowdhury Vs. The State, 28 DLR (AD) 39 this Court considered the scope of section 561A Cr. P.C. and categories of cases for quashing before the trial. It was observed : "Interference even at an initial stage may be justified where the facts are so preposterous that even on the admitted facts no case can stand against the accused and that a further prolongation of this prosecution would amount to harassment to an innocent party and abuse of the process of the court."

 

Cases may also arise where the allegations in the first information report or the complaint even if they ar taken at their face value and accepted in their entirety, do not constitute the offence alleged. In such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the First Information Report, to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow process of the criminal court to be issued against the accused person. Nasiruddin Mahmud Vs. Momtazuddin Ahmed (1984) (AD) 36 DLR 14.

 

—The expression used in section 561A is "any Court". This expression by itself, if properly interpreted, would mean a criminal court as distinguished from a court which is not criminal. Neither this expression nor anything else in section 561A gives any indication that a Court has to be subordinate to the High Court Division so that it may exercise jurisdiction over that court under that section. It is true that after the amendment of the Special Powers Act by LIX of 1974 the jurisdiction of the High Court Division to hear appeals from the judgment of Special Tribunal was taken away.

 

In view of these provisions the High Court Division has neither the power to hear an appeal from nor to revise any order, judgment or sentence of the Special Tribunals. On a close scrutiny of the aforesaid provisions, it, however, becomes clear that they do not provide either expressly or by implication that the High Court Division shall have no jurisdiction of any kind in respect of any proceedings of such special tribunals. If such provisions were to be found anywhere in the Special Powers Act it might have been held, as was done by the judicial committee of the Privy Council in AIR 1946 PC 169, that the High Court Division had no jurisdiction under section 561 A-'over' the Special Tribunals. Moreover, section 29 of the Special Powers Act has made applicable all the provisions of Code of Criminal Procedure in so Tar as they are not inconsistent with those contained in the Act to the proceedings of the Special Tribunal. The High Court Division can, under section 561A, exercise its limited jurisdiction in the proceedings before the Special Tribunals. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—Offences committed when the law under which cognizance of the offences was taken by the Special Tribunal was in force-—By subsequent amendment when the prosecution case was pending before the Tribunal these offences were omitted from the statute.

Held : In spite of the omission of these offences from the statute, the Tribunal has jurisdiction to try the offences charged.

 

Amendment of the Special Powers Act by the Ordinance No. XL of 1977 did not have the effect of excluding the cases from the'jurisdiction of the Special Tribunal, particularly insofar as it did not have any retrospective operation on the pending cases. Accordingly, the Special Tribunal has the jurisdiction to try the cases in which they had taken cognizance prior to the amendment. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—Special Tribunal constituted under the Special Powers Act 1974, are not subordinate to the High Court Division which can however, examine the legality or propriety of proceedings before the Special Tribunal. Per Ruhul Islam, J.—Even if the Special Tribunals are not subordinate to the High Court, the High Court Division in exercise of its inherent power under section 561A can examine the legality or "propriety of any proceedings before such Tribunals to prevent abuse of the process of any Court." A tribunal or court specially created under a special statute, does not have the status of a "Criminal Court" as contemplated under the Code of Criminal Procedure unless so provided simply because it has been assigned with the function of trying the offence created under the statute along with some of the specified offences under the Penal Code.

 

The learned judges of the High Court Division acted in excess of their jurisdiction in quashing the proceeding before the Special Tribunal which is not subordinate to the High Court Division. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

—Gross abuse of the process of court—Proceedings quashed after pendency of the proceedings for 11 years disclosing amazing dilatoriness. The result of the impugned order dated 30.7.82 passed by the learned Special Judge was that petitioner would have to face a fresh trial in 1982 for an alleged offence committed in 1968. It is also not known how many of the prosecution witnesses arc alive or will be available when the trial, if at all, starts in the foreseeable future.

Further prolongation of the proceedings against the petitioner would be a sheer abuse of the process of the Court and harassment of the accused and for ends of justice the proceedings are liable to be and, hereby quashed. Makhekur Rahman Vs. The State' (1983) 35 DLR 72.

 

—Criminal proceeding start after cognizance by courts is taken.

Proceeding before a Court starts when the Magistrate takes cognizance of an offence on police report or on complaint. Before such cognizance, there is no proceeding that may be quashed under section 561 A, Cr.P.C. Process is issued only after taking of cognizance. In the 28 DLR case this Court considered as to when and under what circumstances jurisdiction under section 561A should be exercised and it was held that interference can be made even at the initial stage, when a mere pcrsual of the complaint would indicate that no criminal case stands against the accused. In that case there was no discussion as to when a proceeding starts before a court. When a complaint is filed before a Magistrate, he may at once take cognizance and proceed under Chapter XVI of the Code of Criminal Procedure or he may simply direct the police to investigate under section 156(3) of the Code and in that case he does not take cognizance of the offence. Nasiruddin Mahmud Vs. Momtazuddin Ahmed (1984) 36 DLR (AD) 14.

 

—"Abuse of the process of the court or to secure ends of justice"—what the expression signifies—Entire gamut of the events to be viewed as a whole.

The inherent powers of this court are applied for ends of justice when the allegations, even if accepted as true, do not constitute any offence. It must be borne in mind thqt it look 4 years for prosecution to make up its mind whether to lodge F.I.R. or not and thereafter it took more than one year and 3 months to submit the charge-sheet, The result of such prolonged laborious investigation arc now before us in the form of F.I.R. and the charge-sheet.  An act improper or bad not necessarily criminal. Allegations as made the F.I.R. or charge-sheet do not make out a case of criminal offence. M.G. Towab Vs. State (1982) 34 DLR 371.

 

—Provisions of section 561A not to be utilised for harassment of innocent person—If this primary purpose is defeated, section becomes nugatory. M.G. Towab Vs. State (1982) 34 DLR 371.

 

—Where   quashing  of  proceedings   not proper.

While I am equally anxious to give relief to the accused appellants, yet I find no legal basis for making an order, at this stage, quashing the proceeding simply on the ground that there is no proceeding against them in the eye of law. The matter is still at the stage of investigation by the Police, and an order quashing the proceeding will come in direct conflict with the decision of this court in the case of Solicitor, Government of Bangladesh Vs. A.T. Mridha, 26 DLR (SC) 17, besides running counter to the established principles governing quashment of criminal proceedings under section 561A Cr.P.C. Nasiruddin Mahmud Vs. Momtazuddin Ahmed. (1984) 36 DLR (AD) 14.

 

—Court's inherent power to do real and substantial justice.

Court must step in to render, as far as it can, substantial justice where there is no other specific legal remedy for a legal right and the inherent power should be exercised ex debito justiciae to do real and substantial justice for the administration of which alone the Court exists. Kari Palan Mia Vs. State (1983) 35 DLR USA.

 

—Allegations  frivolous vexatious—proceeding  quashed and

The allegations made .in the petition of complaint do not Disclose any offence against the accused petitioner and appears insofar as relates to the accused petitioner are liable to be quashed. Akhlar Rahim Vs. State. (1983) 35 DLR 100.

 

 

 

—Restoration, when a revisional application dismissed for default.

High Court Division dismissed a criminal revision for .default and therefore an application for its restoration was moved. The case having been dismissed for default when it was neither heard nor disposed of on merits, the petitioner in all fairness and for ends of justice should be afforded an opportunity of being heard in the matter. The order discharging the Rule for default hereby recalled and vacated and the Criminal Revision case is restored to its original file and number. Mozahar Sikdcr Vs. Slate (1983) 35 DLR 208.

 

—Where quashing of proceedings not proper.

Power under section 561A Cr.P.C. can be exercised for the purposes specified therein, namely.(a) to give effect to any order under this Code; or (b) to prevent abuse of the process of any court or (3) otherwise to secure the ends of justice. This Court has considered the scope of section 561A Cr. P.C. in the cases reported in 26 DLR (SC) 17 and 28 DLR (AD) 39. The view taken in 26 DLR case is that statutory power of police to investigate cognizable offence cannot be interfered with under section 561A and that section is not to be utilised to intercept or obstruct the ordinary course of procedure as laid down in the Code. Nasiruddin Mahmud Vs. Momtazuddin Ahmed (1984) 36 DLR (AD) 14.

 

Al the time of trial (which is now pending before the Special Judge) the evidence will be produced by the prosecution as well as by the defence and it will be seen whether the accused petitioner dishonestly obtained any undue pecuniary advantage, etc. At this stage it is premature to go into the merits of the case and arrive at any conclusion on the facts in issue. Hasan Uddin Sarkar Vs. The Stale (1982) 34 DLR 287.

 

—Majority view—Facts of the case as alleged are that accused, the Branch Manager (who is not before us) acting in collusion with the accused-appellant, disbursed an amount of taka two lacs to the appellant on 5.5.75 apparently by way of an over-draft without however passing any order of sanction and without taking any security whatsoever and that this disbursement being made in total disregard of Government orders, instructions and Bank's Rule and Regulation, prejudicially affected the financial and economic interest of the Bank which is a nationalised financial institution and further that this disbursement constitutes criminal breach of trust and misappropriation. Nakuleswar Saha Vs. The State (1983) 35 DLR (AD) 284.

 

—When facts alleged in the FIR and the charge-sheet and other circumstances make out & prima facie case of misappropriation the prayer for quashing the criminal proceeding pending can not be entertained.

Minority view—In this case the allegation is that the Bank Manager accommodated the petitioner by granting the facility of temporary over-draft since he is a "friend and business partner." It is in the fitness of things that the Bank Manager must know the person thoroughly whom he is giving facility of overdraft and this relationship arising out of each other's "friendliness" could not be an item in the catalogue of allegation of a criminal action. What has been done on allowing the over-draft was in the course of normal bank's business—The fact that the loanee was a friend of the Bank's Manager can not be a ground for criminal prosecution against him in the absence of any positive law prohibiting such way of allowing over­draft. Nakuleswar Shahcr Vs. The State (1983) 35 DLR (AD) 284.

 

—High Court Division's jurisdiction to interfere with the Tribunal's judgment or order u/s. 561A. Cr. P. Code to prevent abuse of process of court. In the case of Bangladesh Vs. Shahjahan Scraj reported in (1980) 32 DLR (AD) I, by a niajorily decision it has been held that although this court has no power to revise any order, judgment or sentence passed under the Special Powers Act but this Court has jurisdiction under section 561A Cr. P.C. in an appropriate case under the Special Powers Act to prevent the abuse of the process of any court to secure the ends of justice. Abul Ilossain Vs. The Slate (1985) 37 DLR 59.

 

—Unusually long delay in commencing the trial—a ground for quashing the proceeding u/s 561-A. Shafique Vllah Vs. The State.(1981) 33 DLR 297.

 

—When inherent power of the High Court can not be invoked—The High Court would be extremely reluctant to interfere in a case where a competent court came to the view that a prima facie case is disclosed and had framed a charge in view of that prima facie case, unless, it could be shown that the charge-sheet on its face, even if believed, did.nol disclose any offence. Saleha Khatun Vs. Slate (1987) 39 DLR 109.

 

—It will be an abuse of the process of law when the complaint docs not disclose any offence and the dispute can at best be a civil one. Abul Hasnat Vs. Hasan All (1987) 39 DLR 375.

 

—Agreement to sell the land—payment of Tk.50,000/-- made in part performance of the Contract—Whether delay in registering the sale-deed and delivering the property to the opposite parties or subsequent conduct in refunding the contract money constitutes an offence of criminal nature—Facts alleged in the F.I.R. do not disclose any criminal offence—Transaction being of civil nature the continuation of proceeding against the petitioner is an abuse of the process of the Court. Abdur Bari Vs. Abdul Hashem (1988) 40 DLR 301.

 

(Minority View)—Whether a proceeding u/s. 561A of the .Criminal Procedure Code is to be quashed depends upon the facts of the case itself. Md. Shamsuddin Vs. The Stale (1988) 40 DLR (AD) 69.

 

—Delay is by itself no ground for quashing the criminal proceeding. But machinery of justice should not be allowed to harass any innocent person. Md. Shamsuddin Vs. The Stale (1988) 40 DLR (AD) 69.

 

—When a prosecution arises out of ill-motive, the machinery of administration of justice need not be available to such person. Reason of delay in lodging F.I.R. is unconvincing. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

 

The informant's plea that he could not lodge F.I.R. due to alleged lawlessness even after 1975 although there was constitutional government for over 4 years except a Martial Law Government for a brief period is unacceptable. The proceeding are quashed. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

 

(Majority View)—Mere delay in lodging a complaint is not a ground for quashing a proceeding. There may be circumstances in which lodging of F.l.R. as to commission of an offence may be delayed. Md. Shamsuddin Vs. The Stale (1988) 40 DLR (AD) 69.

 

—Explanation for delay in lodging F.I.R. was given, i.e. fear of life from very influential persons. Md. Shamsuddin Vs. The State (1988) 40 DLR

(AD) 69.

 

—Delay raises doubt about the truth of allegation. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

 

—Principles upon which exercise of extraordinary power u/s. 561A Cr.P.C. is made have been stated. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

 

—Facts of the instant case do not bring it within the ambit of exceptional circumstances in which the extraordinary power of the Court may be exercised. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

—A timely Gft). entry of course strengthens the allegation made in the complaint and its absence may create doubt about it; but doubt in the allegation is a matter to be considered at the trial only. Md. Shamsuddin Vs. The State (1988) 40 DLR (AD) 69.

1876

Constitution of Pakistan, 1962 -34

Citation: 35 DLR (AD) 127, (1986) 38 DLR (AD) 75, (1967) 19 DLR (WP)27, (1984)36DLR93, (1984) 36 DLR 102, (1985) 37-DLR 182, (1984) 36 DLR 335, (1984) 36 DLR 111, (1984) 36 DLR 174, (1984) 36 DLR 102, (1985) 37 DLR 100, (1985) 37 DLR 182, (1986^38 DLR 166, (1986

Subject: Constitution of Pakistan

Delivery Date: 2018-09-26

Sees. 561A  and 439A. A person unsuccessful in an application u/s. 439A cannot take recourse to s. 561A.

Extraordinary power of the High Court Division under section 561A Cr.P.C. cannot be invoked by a person after becoming unsuccessful in an application under section 439A Cr.P.C. except for the specific purposes set out in that section. Mr Rahman Vs. Stale (1985) 37 DLR-167. (See also 35 DLR (AD) 127).

 

Witnessess   tendered   by   prosecution

explained. A witness may be tendered by the prosecution if his evidence is not of much importance or his evidence will make unnecessary addition to the evidence already adduced. Sometimes a witness is tendered by the prosecution from motive, and not examined lest something undesirable comes out of his lips. Shamsul Huq Vs. The State, (1986) 38 DLR (AD) 75.

 

S. 562 : Release on probation of an offender under section 562 CnP.Code after,coming into force of Probation of Offenders Ordinance, 1960 illegal. The State Vs. Saifal and another, (1967) 19 DLR (WP)27.

 

S. 562(1) : Order as to bond, directing at the same time that the offender in default of furnishing security shall suffer imprisonment—Direction has no sanction in language of section. / PLD(Lah) 372.

 

Criminal Procedure Code (2nd Amendment) Ordinance (24  of  1982).

S.9(3)—All Assistant Sessions Judges are deemed to be Additional Sessions Judges when a District Magistrate, Additional District Magistrate or any First Class Magistrate is specially empowered to try any offence. Nazir Ahmed Vs. Yonus Meah (1984)36DLR93.

 

Ss. 9(3), 439A & 439—Asstt. sessions Judge deemed to be Additional Sessions Judge u/s. 9(3) Cr. P. Code is to be treated as Additional Sessions Judge for all purposes except that he can not pass a sentence of transportation for life—He can hear revisions u/s. 439A and appeals u/s. 439. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

—Assistant Sessions Judges deemed to be Additional Session Judge may exercise powers and discharge functions of the Additional Sessions Judge subject to any limitation as way be prescribed. Nazir Ahmed Vs. Yunus Meah (1984) 36 DLR 93.

 

S. 24 : Provisions in Section 24 of this Ordinance introducing new section 339(c) in the Code and making provisions for trial of a case within certain time shall be subject to the transitory provision, i.e sub-section (c) of section 35 of the said Ordinance. Md. Suruj Mia Vs. Katu alias Abdul Latif(1984) 36 DLR 102.

 

S. 31(4) :. Assistant Session Judges in view of S. 31 (4) can not pass a sentence of death— Except as regards the lemitation in respect of sentence of punishment, the power of the Additional Sessions Judge and those of Assistant Sessions Judge are equal. Nazir Ahmed Vs. Yonus Meah / (1984) 36 DLR 93.

 

' —If appeal against the Judgment of Additional Session Judges deemed as Addl. Sessions Judge is to be filed in the High Court Division, instead of before the Session Judges, problem created by too many filings in the High Court Division is not the concern of a Court of Law. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.

 

S. 35 :    When a case becomes pending in a Court.

On the lodging of the F.I.R. a case does not become a case pending in a Court within the meaning of clause (c) of s. 35 of Ordinance 24 of 1982. It is then a case pending investigation within the meaning of clause (d). After investigation and on the submission of charge-sheet before a Court it would become a case pending in Court. In the present case, the charge-sheet was submitted to the court before the date of the Ordinance and the case was a case pending in court immediately before the commencement of the Ordinance XXIV of 1982 and is covered by section 35(c) of the Ordinance, and section 339C, Cr. P.C. is not attracted. Masu Sardcr Vs. Rashid Biswas. Vs. Rashid Biswas.(1985) 37-DLR 182.

 

In a pending case the transitory provision of S.35 of Ordinance 24 of 1982 will apply—with the lodging of the FIR and the submission of the charge- sheet by the police, a case becomes pending in a court. If it is'a pending case in that case transitory provision as provided under section 35 of the Ordinance 24 of 1982 will be applicable. After the lodging of the FIR and submission of the charge-sheet a case becomes pending in a Court. Ruhul Amin Gazi Vs. State (1984) 36 DLR 335.

 

—Time limit referred to in S.35 of Ordinance 24 of 1982 is not mandatory—time limit which has been provided in section 35 of the Ordinance No. XXIV of 1982 is' not mandatory but directory in nature,. Ruhul Amin Gazi Vs. State (1984) '36 DLR" 335.

 

S.35(a)(i)—If trial has already begun (i.e. before the amendment) it shall be disposed of as if no amendment has taken place. AH ffossain and on. Vs. Slate. (1984) 36 DLR 111.

 

S.35(c) : Under scc.35(c) of Ordinance 24 of 1982 any case pending before any court, .including the Supreme Court, shall have to be disposed of within 360 days. Moklesur Rahman  Vs.  State (1984) 36 DLR 174.

—Applies to a case pending in any court for disposal by trial immediately before the commencement of this Ordinance—When a case is pending for trial on 26.8.82 it is one to which clause (c) of s.35 is attracted and where 360 days are not over the case is one triable according to law and an order of.discharge in the view will be illegal. Md. Suruj Mia Vs. Katu alias Abdul Latif.- (1984) 36 DLR 102.

 

—Period of 360 days for disposal of a case, pending before court under clause (c) of s.35 of Ordinance 24 of 1982 is directory. An accused not entitled to be released on the expiry of that period. MasufSardar Vs. Rashid Biswas (1985) 37.

 

—If a case be pending when this Ordinance came into force, it shall be governed by the provision of section 35(c) of the Ordinance and not section 339 of the Code. Mortoza Elahi Vs. The State. (1985) 37 DLR 100.

 

—The limitation of time as per section 35(c) of the Ordinance 24 of 1982 is mere directory in nature. For non-disposal of a case within the lime specified there, no consequence follows and the accused does not became entitled to be released. Mam Sarder Vs. Raihid Biswas (1985) 37 DLR 182.

 

—Provision of s.339(C) of the Code will apply (to the present case) and having regard to provision of section 35 of the Ordinance it was a case pending trial immediately before the commencement of the Ordinance. Md. Suruj Mia Vs. Kalu alias Abdul Latif (1984) 36 DLR 102.

 

—What clause(c) of section 35 of the Ordinance 24 of 1982 says is any case which immediately before the commencement of this Ordinance was pending in any Court, it shall be disposed of within 360 days from the day of the commencement of the Ordinance which came into force on 21.8.82. Mortoza Elahi Vs. The state (1985) 37 DLR 100.

—A case cognizance of which was taken on 10.3.81 is a case which falls within the provisions of section 35(c) of Ordinance 24 of .1982 to which section 339C has no application. Ruhul Amin Vs. The State. (1986^38 DLR 166.

 

—A case which was pending trial on the day when Ordinance 24/1982. came into force required to be disposed of within 360 days and if not so disposed of accused acquired no right to be released— Therefore section 35(c) of Ordinance No. XXIV of 1982  is directory and not mandatory. Ruhul Amin Vs. The State. (1986) 38 DLR 166.

 

—A criminal case pending before court on 3.1.80 is not a case governed by section 339C but falls u/s 35(c) of Ordinance 24 of 1982. Md. Ansarul Alam Vs. The^ State (1986) 38 DLR 177.

 

Criminal Procedure Code (2nd Amendment) Ordinance (37 of 1983).

Ordinance XXXVII of 1983 speaks of cases which were pending before Criminal Courts when this Ordinance was promulgated on 8.8.83. The present case before the Additional Sessions Judge having started on 15.5.83, Ordinance XXXVII of 1983  has no application. This case is governed by the provision of section 339C, sub-section (2) which requires that the trial of a criminal case by a Sessions Judge must be concluded within 150 working days. The trial before the Sessions Judge not having been concluded within those days the accused have accquired a right of being released and the Court accordingly directed the release of the accused person. Ramjoy Mondal Vs. The State (1985) 37DLR 252.

 

S.8—case becomes pending when cognizance is taken. Trial commences when charge is framed or substance of accusation is stated to the accused. Ruhul Amin Vs. State. (1986) 38 DLR 166.

 

—If charge could not be framed, that is, trial could not commence, when on 8.8.83, Ordinance 37 of 1983 came -into force—This Ordinance not attracted When the Ordinance No. XXXVII of 1983 came into force on 8.8.83, due to efforts being made by the trial Court to secure the appearance of the absconding accused persons and due to the stay order, charge could not be framed and trial could not commence and therefore it cannot be said that the trial of the case was pending when Ordinance Nd.XXXVIII of 1983 came into-force on 8.8.83. Ansarul Alam Vs. State (1986) 38 DLR 177.

 

—The learned Judge rejected the prayer for time and acquitted the accused persons observing as follows—

All the accused persons are present in court by filing hazira. Prosecution files a petition praying for adjourning the date of trial on ground stated in the petition.

 

Heard the learned P.P. The case pending since before 8.8.83 and as such it has to be disposed of before 31st December. 1983 according to the latest Ordinance. So the prayer for adjournment is rejected. Prosecution failed to produce any P.W. in spite of several adjournments. So, I find the accused persons not guilty of the charge for want of evidence.

 

The order passed by the Sessions Judge acquitting the accused on 22.12.83 is illegal, since the disposal of the case could be extended upto 31.12.83 which means 9 days more remained for its disposal. Submitted that Ordinance No.37 of 1983 (Code of Criminal Procedure 2nd Amendment) provides by section 8 that "if such trial can not be concluded before 31.12.83, further proceedings in respect of the trial shall stand stopped and the accused persons released." The learned Sessions Judge overlooked the provision of law which provides that the accused persons may be released but not acquitted.

 

Held—This contention must be accepted when the learned Session Judge passed the order of acquittal on 22.12.83 he himself had noticed that such case was to be disposed of before 31.12.83. So he had still 9 days to go and if he intended to pass such order that coufd only be after 31.12.83 and not before that. The order passed by Session Judge is palpably wrong and illegal. Amena Hoque Vs. Rajab All (1986) 38 DLR (AD) 303.

 

1877

Constitution of Pakistan, 1962-4

Citation: (1978) 30 DLR (SC) 58, (1983) 35 DLR 140, (1980) 32 DLR (AD) 247, (1968) 20 DLR (Dae.) 55, (1968) 20 DLR (Dae.) 1002, (1973) 25 DLR 201, (1984) 36 DLR (AD) 58, (1964) 16 DLR (W.P.) 95, (1977) I 29 DLR 122, (1957) 9 DLR 633, (1984) 36 DLR (AD) 58, 190(

Subject: Constitution of Pakistan

Delivery Date: 2018-09-03

Taking cognizance of an offence by a court is a judicial act—There must be placed before the court fact such as will constitute offence—Court cannot act on the mere opinion of police saying some offence has been committed—This act of taking cognizance being undoubtedly a judicial act of the Court operating to the prejudice of an alleged offender; the Court is required to perform this act judicially, that is to say, not arbitrarily or wilfully, on certain assumptions or conjectures, but on the basis of some materials, which, according to the provisions of law, should be allegation of facts constituting the offence made by the police officer concerned.

 

A Court of law cannot proceed judicially on a bare statement made by such police officer to the effect that a prima facie case under certain penal provision has been proved against the accused persons, without disclosing the allegation of fact constituting the said offence. Such a statement, unaccompanied by the facts constituting the said offence, which is nothing but a mere opinion of a police officer concerned, cannot be in any event, the basis of any judicial action by the Court. Abdul All Vs. State(1978) 30 DLR (SC) 58.

 

—Any Magistrate mentioned in Sec. 190 may take cognizance of an offence which such Magistrate alone can try but also can take cognizance of an offence triable by Sessions Court. This power of taking cognizance of any offence is not limited only to those offences which are triable exclusively by the Magistrate, but also extends to offences which are triable exclusively by the Court of Session.

 

The power is of course restricted under section , 190 Cr.P.C. by the exceptions provided in that section itself, but these exceptions do not provide that the Magistrate cannot take cognizance of any offence which he is not empowered to try or which is triable exclusively by the Court of Session. Abdus Salam Master Vs. The State (1983) 35 DLR 140.

 

SS. 190 & 204—Magistrate's wide power to issue process—Magistrate has been given the power for using discretion whether to proceed by way of issuing processes or not by the Court—If the Magistrate having followed the procedure laid down in the Code can exercise his judicial discretion as to whether he ought to issue processes or not, the High Court will respect his decision and will be slow to disturb his order that he has passed. The complainant filed a petition to summon the discharged accused, on the ground that the evidence made out a prima facie case against them. The Trying Magistrate rejected the petition observing :

"This is a police case and court can not include the non-sent up accused persons in framing charges at this stage, prayer rejected. Court will take cognizance against accused persons who are sent up for Trial only by the I.O."

 

Held: The Trying Magistrate in the instant case wholly erred in Law when he declined to consider the case of the present appellants on the ground that this being a police case and since the Police did not submit charge-sheet he is not authorised by Law to take cognizance against these appellants. Abdul Jabbar Khan Vs. State (1980) 32 DLR (AD) 247.

 

S. 190(1) : When a Magistrate takes cognizance of an offence—A Magistrate takes "cognizance of an offence" on a complaint when after applying his mind to the allegations he proceeds to take some steps intending thereby to start a proceeding. A Magistrate is said to have taken cognizance of an offence under section 190(l)(a) of the Code when he has not only applied his mind to the contents of the petition but has also taken some steps for the purpose of proceeding in a particular way as indicated in the subsequent provisions. The first step to be taken by the Magistrate for the purpose is to examine the complainant under section 200 of the Code of Criminal Procedure. This means that the actual proceeding in the case commences with the examination of the complainant, when the Magistrate after perusing the complaint is moved to make some enquiry as to the correctness or otherwise of the allegations. Dr. Jamshed Bakth Vs. AmeenurRashid Chowdhury (1968) 20 DLR (Dae.) 55.

 

—Sub-Divisional Magistrate transfers a case with certain accused persons for trial to a First Class Magistrate—The latter has no authority to summon a person not forwarded by the S.D.O to stand trial. Sultan Ahmed Vs. Abdul Khaleque, (1968) 20 DLR (Dae.) 1002:

 

—Cognizance—Cognizance taken upon complaint without examining the complainant on solemn affirmation.

Held: Cognizance not legally taken. Nur, Muhammad Vs. Rafiquddin Ahmed. (1973) 25 DLR 201.

—The Magistrate's power of taking cognizance under section 190(1) in all cases, including those exclusively triable by a Court of Session, has remained unaffected by the repeal. Abdus Salam Master Vs. The State (1984) 36 DLR (AD) 58.

 

—A Magistrate who is not a District Magistrate nor a specially empowered Magistrate cannot take cognizance of a case under sec. 190(1).

The trying Magistrate was neither a District Magistrate nor a Magistrate specially empowered to take cognizance of an offence under section 190(1).

 

Held: In view of section 190(1) the Magistrate was not competent to take cognizance of an offence upon receiving a complaint of facts which constitutes such offence. Mir Muhammad Khan Vs. State (1964) 16 DLR (W.P.) 95.

 

S.   190(l)(a)Under the Special -Powers Act, no Special Tribunal could take cognizance of I an offence under clause (a) of section 190(1) Cr.P.Code. Dost Mohammad Vs. The State (1977)  I 29 DLR 122.

 

S. 190(l)(a)(6)Unauthorised investigation [ does not render the trial illegal. Investigation by a Police-Officer not empowered to investigation does not render the trial illegal as that can not deprive the court of its inherent jurisdiction to try this case. The report of such a Police officer falls under section 190(l)(b) or alternatively under section 190(l)(a). Abdul Noor Vs. State (1957) 9 DLR 633.

 

Sec. 190 clauses (a)(b) Magistrate not bound to accept the police final report and discharge the accused. If from statements on record, the Magistrate finds materials to warrant prosecution, he may lake cognizance of the offence under clause (b) and not under clause (c) of S. 190(1). Abuds Salam Master Vs. The State. (1984) 36 DLR (AD) 58.

 

—The fact that the Sub-Inspector of Police was not authorised to investigate a case will not render trial of the case, without jurisdiction. In such a case, the report of the Police-Officer will be a report falling within the purview of section 190(1 )(b) or, in the alternative it can be accepted as a complaint within section 190(l)(a). 7 PLD (Lah.) 667.

 

Irregularity     in     investigation-

Irregularity in investigation does not affect jurisdiction of Court — trial not vitiated — Proceeding of Magistrate during raid in respect of the offence of taking illegal gratification — Not investigation. 8 PLD (Lah.) 87.

 

—Magistrate is not bound to take cognizance of an offence on a petition of complaint — without taking cognizance he may as well proceed under section 156(3) or issue a search warrant for investigation. Badsha Mia and others Vs. The State (1958)10 BLR 412.

 

S. 190(1 ((6) Report of the police officer after investigation into the offence being one under section 190(I)(b) is not binding on the Tribunal when he decides either to take or not to take cognizance of an offence under sec. 27(1) of the Special Powers Act. Md. Kalu Bhuiyan Vs. Special Tribunal (1978) 30 DLR 124.

 

S.190(I)(b)-S. 156(3) Under Magistrate may .without taking cognizance of an offence send the case for investigation by police — Under sub-section (3) of section 156 a Magistrate may order an investigation but this investigation is intended for a case where the Magistrate instead of himself taking cognizance of an offence on a complaint, forwards it lo the police for investigation. In such a case the complaint is treated as the first information report by the police. The Magistrate takes cognizance of an offence under sec. I90(I)(b) of the Code on a police report. State Vs. Abul Kashem(1975) 27 DLR 342.

 

—Magistrate can take cognizance of even a non-cognizable offence on a Police report. Dr. Kazi Habibul Islam Vs. The State (195$) 10 DLR 152.

 

S.190(I)(b): Taking cognizance of an offence, what it means—Cognizance is merely the mental decision of a Magistrate or Judge to take judicial notice of a case. When a Magistrate or Judge applies his mind to the facts of the case, as contained in the police report and the connected papers, and decided to proceed against the offender with a view to determining the guilt it is the stage where cognizance of the offence is taken. The Magistrate or Judge is free in this respect. The Police report may provide an aid to the consideration in the matter of taking cognizance, but it is by no means binding. Abdul,Ml Vs. State (1978) 30 DLR (SC) 58.

 

—A petition by the Court Inspector to have a person put on his trial could not be treated as a report from the Police under clause (b) of section 190(1). Abdus'Satlar Mplla Vs. The Crown (1953) 5 DLR (PC) 14.

 

S. 190(l)(b)The question that arises is whether a police officer is competent to re-open investigation into a case, in which he had submitted a final report. Investigating Officer who in a particular case upon investigation submitted final report is not prevented if fresh materials came to his knowledge to prefer charge-sheet in respect of the same person and the Magistrate too who either discharged the accused is not prevented from taking cognizance on fresh materials. Jafar Ahmed Vs. The State (1974) 26 DLR 211.

 

S.190(l)(b)(a)Trial of a case in respect of a non-cogrtizable offence which has been investigated by police without an order by competent Magistrate does not render the trial illegal. Police report will, in that case, be treated as a complaint under section 190(l)(b). Haider Jahan Vs. State, (1973) 25 DLR 455.

 

S.190(l)(a)(b)(c)Cognizance of offence in the manner stated in clause (a) or (c) of S.I90(1) Cr.P.C. not permissible in.a trial held under the Special Powers Act. Putting section 190 Cr.P.C. in juxtaposition to section 27 of the Special Powers Act, the conclusion in the law has provided for taking cognizance only upon a report in writing made by a police officer and not otherwise and therefore any cognizance taken on clause (a) or (c) of section 190 Cr.P.C. is not contemplated.

 

There is no corresponding provision in the Special Powers Act for taking cognizance upon information received from any person other than police officer or upon his own knowledge or suspicion that such offence has been committed. Dost. Mohammad Vs. Slate (1977) 29 DLR 122.

S.190(l)(c)—Under Cr.P.C. a court takes cognizance of an "offence and not of an offender". Monomohan Saha Vs. State (1976) 28 DLR 185.

 

—Magistrate though, not empowered to take cognizance under clause(c) of S. 190(1) yet proceeds to take such cognizance—His proceedings shall be void. Abdul All Vs. Slate(1978) 30 DLR (SC) 58.

 

—Magistrate can take cognizance of offences triable under P.O. 50/72, against persons not charged-sheeted and not sent up for trial on perusal of the police report—It has been contended that no cognizance of any scheduled offence could be taken under Article 4 of P.O.50 of 1972 except on police report and that in this case cognizance taken by the learned Magistrate on his own knowledge under section 190(I)(c) of the Code is without jurisdiction.

 

Held: It appears that the learned Magistrate had already taken cognizance of the offence in this case on a police-report that is, on the charge-sheet submitted by the police. His subsequent order issuing process against these two persons is found to have been made on the basis of the same police report. It is true that the police did not recommend, in their report, the trial of these two persons, but their report is not binding upon the Magistrate who may take cognizance of the offence not only against a person recommended by the police but also against a person who has not been so recommended provided there are sufficient materials in the police report and other connected papers showing complicity of that person in the offence. Where the police report contains sufficient materials against a person the. Magistrate may without directing a further investigation take cognizance and issue process. Monomohan Saha Vs. State (1976) 28 DLR 185.

 

S.190(c)A Subf-divisional Magistrate who is said to be the President of a School Managing Committee may take cognizance of the offence under sec.!90(c) Cr.P.Code suo motu upon his knowledge or information. Akhtar Hossain Molla Vs. Abdur Rashid Molla, (1973) 25 DLR 471.

 

S.190(I)(c)Submission of final report is no bar to prosecute if evidence discloses commission of an offence. Having taken cognizance of an offence the learned Magistrate perused the naraji petition against the final report filed by the police and he was satisfied that the process can be issued against the accused who was earlier shown as witness in the F.I.R. It is common knowledge that supplementary charge-sheet can be always filed. The submission of final report has not created any right inhering in the accused so as to disentitle the prosecution to prosecute with evidence which was hot available earlier. CharagAli Vs. State (1977) 29 DLR 25.

 

—A Magistrate who, in the course of the trial, on the evidence of some of the prosecution witnesses, brought another person to stand his trial upon a charge, takes cognizance of an offence with regard to person under clause {c) of section 190(1) and unless the Magistrate is empowered to act under clause (c) of that section, the trial is vitiated. (This is the majority view) Abdur Saltar Molla Vs. Tfre Crown (1953) 5 DLR (FD) 14.

 

—On fresh incriminating materials, the Metropolitan Magistrate can take cognizance of an offence against a person earlier discharged. After discharge of the accused the same case cannot be revived against the accused; but this is not a case of revival; Shafiqur Rahman Vs. The State (1985) 37 DLR 167.

1878

Constitution of Pakistan, 1962-5

Citation: (1962) 14 DLR 121 : (1962) PLD (Dae) 340, (1953) 5 DLR (FC) 14 (27), (1959) 11 DLR 364 = (1960) PLD (Dae) 26, (1959) 11 DLR (WP) 42 = (1958) PLD (Kar) 538, (1959) 11 DLR (WP) 42, (1959) 11 DLR (WP) 42 = (1958) PLD (Karachi) 538, (1980) 32 DLR (AD) 247,

Subject: Constitution of Pakistan

Delivery Date: 2018-09-04

S.191—W.nen a Magistrate is competent to convict, a man when he himself has taken cognizance of an offence, without informing him that he can get his case tried by another Magistrate.

Section 191 of the Code clearly prescribed the maximum limit upto which the Magistrate can proceed and no further without infringing the principle upon which the section itself is based. This limit is "before any evidence is taken". The principle underlying the section is that no man should be a judge in his own case.

The accused, however, may still have confidence in the particular Magistrate and can waive his objection to be tried by him.

 

State Vs. Satyapada Biswas (1962) 14 DLR 121 : (1962) PLD (Dae) 340.

 

—When a Magistrate having power to act under section 190(l)(c) takes cognizance of an offence against a person under clause (c), he must inform the accused, under section 191, that he is entitled to be tried by another Court. His failure to do that vitiates the trial. The question whether the Magistrate did inform the accused that he is entitled to have his case tried by another Court will have to be found out from the record of the case and, if there is nothing to show on^ the record that section 191 was complied with, the presumption is that the provision of the section had nol been complied with and, therefore, the trial stands vitiated. This is the majority view. The minority view, slated by Akram, J., is stated below.

 

Abdus Saitar Motta Vs. Crown (1953) 5 DLR (FC) 14 (27).

 

—Section 191 nowhere states that it is obligatory upon a Magistrate to put on record the fact that he had complied with the terms of the section, (minority view)

 

Abdus Sattar Vs. Crown (1953) 5 DLR (FC) 14 (27).

 

S.192: Transferee Magistrate, having no territorial jurisdiction—An Additional District Magistrate may, after passing an initial order u/s. 145(1) of the Code, transfer the case u/s 192 to Magistrate subordinate to him and such Magistrate will have jurisdiction to deal with the case, although he has no territorial jurisdiction over Ihe properties as to which any breach of the peace was likely.

 

Probhat Chandra Bhaitacharjee Vs. Mahmad Ali (1959) 11 DLR 364 = (1960) PLD (Dae) 26.

 

—"Taking cognizance"—Examination of complainant or issue of process are no ingredients of taking cognizance of an offence for the purpose of section 192.

 

State Vs. Ali Mohammad,(1959) 11 DLR (WP) 42 = (1958) PLD (Kar) 538.

 

—The correct procedure for transferring a case which has been transferred under section 192, is to withdraw or recall it and then to transfer it to any other subordinate Magistrate of competent jurisdiction. But a transferee Magistrate cannot withdraw or recall a case transferred to him from his own file.

 

State Vs. Ali Md. and others (1959) 11 DLR (WP) 42.

 

_Transfer of case—Transferee Magistrate cannot further transfer it—The object of a transfer under this section is that the transferee has himself to inquire into or try the transferred case. There being this restriction in law on the purpose of transfer made under section 192, the transferee Magistrate will transgress it if he transfers the case, to some other Magistrate, and such an order of transfer would be ultra vires and not curable under section 529(0-

 

Stale Vs. Ali Md. and others (1959) 11 DLR (WP) 42.

 

Ss. 192 & 526—Transfer of criminal cases-Difference between sec. 192 and section 526. There is a difference between the language used in section 192 and sec. 526 Cr.P.C. A transfer under section 192 must be always "for inquiry for trial ". The object of such transfer is that the transferee-Magistrate has himself to inquire into or try the transferred case. Under section '526 a case is transferred without any restriction on it and the inference j,s that where a case is transferred by the High Court under this section the transferee Court may in the absence of direction to the contrary, try the case himself or transfer it to a Subordinate Magistrate.

 

State Vs. Ali Md. & others (1959) 11 DLR (WP) 42 = (1958) PLD (Karachi) 538.

 

8.192(1)The word 'case' in sec.192(1) need not necessarily be confined to a case in which an offence is involved. It is wide enough to include proceedings under sec. 133 of the Cr.P.C. and consequently a Magistrate who drew up proceedings under sec. 133 is competent to transfer the case to another Magistrate under sec. 192(1) of the Code.

 

Haji-Keramat All Vs. Sadat All. (1955) 7 DLR 351.

—8.192(2) read with section 528(2)(4) Magistrate's power to recall case and try it himself or transfer it for trial. The reading of two sections, namely sections 528 and 192 Cr.P.C. clearly reveal that a case which has been transferred to a Magistrate could be withdrawn to the file of the District Magistrate or Sub-Divisional Magistrate. To sum up, the conclusions are:-

 

(1) Transferee Magistrate Can take cognizance of a person against whom evidence is led by the prosecution and try him and when he docs so, he does under the original clause of section 190 Cr.P.C. when the cognizance is taken.

 

(2)  When a case is transferred it is the whole case and not merely the case of persons sent up by police and the trying Magistrate only is competent whether to issue processes or not against the rest of persons who have been mentioned in the complaint petition but not sent up for trial by the police.

 

(3)  Under the Code of Criminal Procedure a wide discretion is given to a Magistrate with respect to the grant or refusal of process. Such discretion must be exercised judicially and the Magistrate will not abdicate his such discretionary function which is envisaged by the Code in favour of any other authority.

 

(4)  Once the case is made over "for disposal" the transferor Court loses all jurisdiction to pass any order unless the case is recalled to his file.

 

(1)          High Court will be slow in disturbing the order of the Magistrate if such discretion is exercised in accordance with law.

Abdul Jabbdr Khan Vs. State (1980) 32 DLR (AD) 247.

 

S.I93; Person accused of an offence has been shown, following police investigation, in column 2 of the charge-sheet filed by the Police before the Magistrate. The case being triable by Sessions Court, the Magistrate along with the accused sent the charge-sheet to the Session Court. Despite the fact that the person has been shown in column 2 of the charge-sheet the Session Court is competent to take cognizance against such person U/S.193.

 

Where naraji application against showing the person in column 2 of the charge-sheet is rejected by the Magistrate, that amounts to the dismissal of the complaint and that the person concerned has been discharged by the Magistrate—in that event Sessions Judge could not proceed against him u/s. 193 Cr.P.Code.

 

A court competent to take cognizance upon a police report can issue process even against a person shown in column 2 of the charge-sheet. When such a police report is sent by a Magistrate under section 205 C to the Court of Session it is evident that the person shown in column 2 thereof is also sent to the Court of Session within the meaning of section 193 and the Court of Session is competent to take cognizance against such a person.

 

But what we want to distinguish in this case is that the petitioner admittedly having not appeared before the Magistrate or been brought before him as provided in section 205-C and the rejection of the Naraji petition by the Sub-Divisional Magistrate having amounted to an order of discharge it could not be said in the particular facts of the present case that the petitioner was sent to the Court of Session within the meaning of sec. 193(1) Cr.P.C.

 

In the particular facts of the present case, it must be held that the taking of cognizance'by the Additional Sessions Judge has been clearly in contravention of the provisions of section 193 Cr.P.C.

 

Abdur Razzaque Vs. State (1983) 35 DLR 103.

 

S.195A person who is directed to show cause why a complaint under section 182 P.P.Code should not be filed against him and he pleads that he had made the report under a misapprehension, he is entitled to lead evidence to that, effect and a complaint can be lodged only after the Magistrate came to a prima facie conclusion that the information given was deliberately false.

 

Khan Gulam Quader Khan Vs. A.K.Khalid (I960} 12 DLR (WP) 78;(1980) PLD (Lah) 1039.

 

S. 195— Complaint under section 182 RP.Code can only be filed by the Magistrate after himself making up his mind and not on the direction of another authority.

 

Kham Ghulam Qader Khan Vs. A.K.Khalid (1960) 12 DLR (WP) 78.

 

— Complaint in respect of an offence referred to in section 195, when the trying Magistrate is transferred, can be made alone by his successor-in-office. (1956) 8 DLR 218.

 

S.I 95 In the instant case there was no proceeding before the Court because the Police after investigation submitted final report in the case. As the alleged offence under section 211 of the Penal Code has not been committed in or in relation to any proceeding of any Court embargo placed under 195 Cr.P.C. is not applicable in the instant case.

 

Haji Abdus Samad Vs. Hajl Jobed All (1976) 28 DLR 58.

 

S. 195(1) Protection afforded in relation to offences mentioned in section can be availed of only by a party to proceedings— Advocate appearing on behalf of a party is not entitled to any such protection.

 

Mozaffar Ahmad Vs. Mst. Rehmat Bibi (1964) 16 DLR (WP) 145.

 

S.195(l)(a) No preliminary inquiry under section 476 Cr.P.C. necessary in respect of an offence falling under section 183 PPC. as such a matter is covered by sec. 195 (1) (a), in which case Complaint can be made straight without preliminary inquiry.

 

Md. Fayzul Hoq Vs. Akbar Hazi (1963) 15.

 

—Magistrate himself reluctant but lodging complaint under section 182, P.P.C. on the advice of the District Magistrate — Complaint not invalid. 9PLD(Lah.)747.

 

S. 195(l)(b) On receipt of a complaint under section 195(l)(b), the Magistrate has no jurisdiction to call upon the persons complained against to show cause against prosecution. He is to try them straightaway/ On receipt of the copy of the order forwarded by the Sessions Judge the Sub-Divisional Magistrate instead of taking cognizance on the basis of the order of the learned Judge, observed in the order-sheet "lodged complaint. Put up on 22-5-67" and prepared a proceeding naming it "complaint under section 193 P.P.C." and served a copy of the same upon the accused to show cause against their prosecution.

 

Held : The preparation of the proceeding in the form of complaint, service of the same upon the accused to show cause and acceptance of the petition showing cause from the accused indicate that the learned Sub-Divisional Magistrate adopted a procedure quite unknown to law.

 

Golam Sarwar Vs. State, (1973) 25 DLR 472.

 

—Sessions Judge is not competent to make a complaint under sec. 211, P.P.C., in respect of an F.I.R. lodged before the Police. 1 PLD(Dacca) 38.

 

—"Except on the complaint in writing of such Court": Explained with reference to the facts of the case. Some witnesses backed out from their testimony as tendered in the Committing Court and gave false evidence in the trial in the Sessions Court, On an application by the Public Prosecutor to take necessary steps the Sessions Judge directed prosecution against them under section 173 P.P.C. for giving false evidence. He also observed that his order should be treated as a "complaint against those witnesses". A copy of the order was sent to the District Magistrate for taking necessary action against them.

Held : The observation by the Judge in the order means that a complaint in writing has been made within the meaning of section 195(l)(b) Cr.P.Cdde. The endorsement in the Judgment is a sufficient complaint and no separate petition of complaint need be made by the Judge.

 

Golam Sarwar Vs. State, (1973) 25 DLR 472.

 

S.195(l)(b): The petitioner while deposing before a Magistrate—Second Class in course of a judicial inquiry ordered by a Magistrate First Class, made a statement which he contradicted before the Magistrate, First Class. A case was started against him under section 193 Indian Penal Code, on the complaint of the Magistrate, First Class. The learned Magistrate, on evidence, found that either the statement which he made before the Magistrate, Second Class or the statement which he made'before the Magistrate, First Class was false. On this finding, the Magistrate convicted and sentenced the petitioner.

 

Held: Under section 195(l)(b) read with section 195 (3) the cognizance taken of the offence on the complaint of the Magistrate, First Class, was bad, so that the whole trial was bad in law.

 

Bhujanda Bhusan Vs. State. (1956) 8 DLR 18.

 

S.195(l)(a)(b)(c)—Sub-Registrar or District Sub-Registrar—not a Court—No sanction under section 195 in respect of offences falling within clause (b) and (c) of section 195(1) can be given by a Registrar or a Sub-Registrar when such offences are committed before such officers inasmuch as such officers are not a Court.

 

In respect of offences falling within sec. 195(1 )(a), they can lodge complaints as public servants.

 

Dr. Abhoy Charan Vs. Faraq Ahmed (1953) 5 DLR 454 (4581

 

S.195(I)(c) : In a criminal proceeding, strictly speaking, only the State and the accused are parties, and therefore, there is "no necessity of extending the protection afforded by section 195 to any other person who is neither a party to the proceeding nor a witness in the same.

 

Director of Pak. Flotilla Co., Ltd. Vs. Abdus Salam (1962) 14 DLR 23.

 

—Complaint made on the original document-Where a copy of a forged document was produced in evidence earlier in point of time in a different Court at L and the original forged document was subsequently produced in another Court at S, the fact that the Court at L did not make a complaint under section 195(l)(c) does not bar the prosecution and trial under sees. 467 and 471, P.P.C., on complaint made by the Court at S under Sec. 195(1) (c) inasmuch as the Court at L with a mere copy of the forged document was not really in a position to express,any opinion upon the genuineness of the original. Sanmukbsing Vs. King, 3 DLR(PC) 3.

1879

Constitution of Pakistan, 1962 -6

Citation: 8 DLR 708, 8 DLR 296, (1957) 9 DLR (WP) 40, (1960) 12 DLR 453;(1960) PLD (Dae) 975, (1968) 20 DLR 66, (1968) 20 DLR (WP) 133, (1986) 38 DLR (AD) 60, (1986) 38 DLR 270, (1987) 39 DLR 109, (1968) 20 DLR 66, 2 PCR 97, 3 DLR 453, (1962) 14 DLR 248, (1960)

Subject: Constitution of Pakistan, 1962 -6

Delivery Date: 2018-09-04

Same transaction — distinct offences—J instituted a civil suit against R in the

Court of a Sub-Judge. The suit was dismissed in view of a document produced by R which, R alleged, was granted to him by J. J, thereupon, lodged a complaint before a Magistrate against R and several others complaining that the document (Ext.2) was forged and proceedings might be initiated against them under secs.419/467 P.P.Code. After Police investigation charge-sheet was submitted against R and several others. Defence, thereupon, argued that without a complaint under sec. 195(l)(c), Cr.P.C., by the Sub-Judge in whose Court the document was produced the criminal case could not proceed not only against R but also against the others inasmuch as the offences under sections467 & 419, P.P.C., alleged to have been committed, were inextricably connected with each other.

 

Held: Prosecution of R with respect to the charge under sec.467. PPC cannot proceed without a complaint by the Subordinate Judge; the two offences one under sec. 467 (forgery) and the other sec.419, being distinct, though committed in course of the same transaction, petitioners other than R not being a party to the above suit, provisions of Sec.l95(l)(c), Cr.P.C., are not attracted so far as they are concerned.

 

Rajani Dasi Vs. State, 8 DLR 708.

 

S. 195(l)(c) : Complaint not valid unless the impugned document (said to be forged) was produced or given in evidence in any proceedings before the Court.

 

Mokbul Ahmad Vs. Crown 8 DLR 296.

 

—Revenue Officer—not a Court-Revenue Officer holding enquiry or hearing appeal in mutation proceeding is not a Court.

 

Malik Fateh Khan Vs. Najibulla (1957) 9 DLR (WP) 40.

 

—Several offences-One requiring complaint by competent authority.

Where there are several offence to be tried and one of such offences required a complaint to be made by a competent authority and a complaint for the trial of that offence had not been obtained the Court may proceed with the trial of the other offences which did not require a complaint to be made by a competent Court.

 

Rahimuddin Vs. State (1960) 12 DLR 453;(1960) PLD (Dae) 975.

 

—Election    Officer,    not    a    Court—

Revising Authority appointed to dispose of claims and objections relating to electoral rolls-Not a "Court" — Sanction to prosecute for offences under sections 193, 465, etc. P.P.C., in respect of a proceeding before such authority not required. 7 PID (Sind) 179.

 

—All the High Courts are unanimous in holding that when a forged document is brought into court, private complaints subsequent to this are not maintainable.

 

Hrishikesh Dutt Vs. State (1968) 20 DLR 66.

 

—Expression "any offence described in section 463" covers all sorts of forgery—Offence under section 468, PPC is one form of forgery as defined in section 463, P.P.C. and therefore sections 468 and 109 are covered by section 195(I)(c).

 

Muhammad Ehsan Vs. The State, (1968) 20 DLR (WP) 133.

 

—Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (c) of section 195 (I) Criminal Procedure Code for making a complaint in writing by the Court concerned can be rendered nugatory and may be dispensed with, since section 6 of Cr. Law Amendment Act' provides that provisions of the Criminal Procedure Code which are not inconsistent wi!.h the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr.Law Amendment Act.

 

Md. Muslim Khan Vs. The State (1986) 38 DLR (AD) 60.

 

—Where complaint has not been made by the concerned court u/s 195(l)(c) Cr.P. Code in a proceeding held under the Cr. Law Amendment Act cognizance of the offence can not be taken.

 

Md. Muslim Khan Vs. The State (1986)38 DLR (AD) 60.

 

—Forgery in respect of a document explained. Each and every offence of forgery committed in connection with a proceeding of a' Court is not covered by clause (c) of S. 195(1) Cr.P.C.

 

Md. Muslim Khan Vs. The State (1986) 38 DLR (AD) 60.

 

—In the present case forged documents were not produced or given in evidence in the certificate proceeding which had been disposed of earlier. Md. Muslim Khan Vs. The State (1986) 38 DLR (AD) 60.

—When forged documents are filed in Court, on a complaint thereon the Supreme Court may act.

 

Such a complaint may by filed under S.195 (l)(c) Cr.P.C. even now if the respondent dares to move the Court for that purpose. These documents issued and certified to be true copies by an authorised officer of the Government are admissible in evidence. Abdus Sattar Vs. Mahiuddin (1986) 38DLR.97

—Provisions of the section explained—Section 195 of the Code of Criminal Procedure puts restriction on the general power conferred upon all courts of the Magistrate by section 190 of the Code of Criminal Procedure to take cognisance of offences.

 

Idrish Ali Vs. The State. (1986) 38 DLR 270.

 

—It provides that when an offence specified in section 195(I)(c) of the Code appears to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such a proceeding, no Court is competent to take cognizance of such an offence except on the complaint in writing of the Court concerned or some other Court to which it is subordinate. Idrish Ali Vs. The State. (1986) 38 DLR 270.

 

—A Revenue Officer dealing with mutation case does not constitute a Court within the meaning of section 195(I)(c) of the Criminal Procedure Code.

 

 Idrish Ali Vs. The State. (1986) 38 DLR 270.

 

S.195(l)(c)—Clause (c) of section 195 applies only to eases where an offence is committed by a party, as such, to a proceeding in any court in respect of a document which has been produced or given in evidence in such proceeding.— In the facts and circumstances of the case, the provision of section 195(c) of the Code of Criminal Procedure is not applicable.

 

Saleha Khatun Vs. State (1987) 39 DLR 109.

 

—All the High Courts are unanimous in holding that when a forged document is brought into Court, private complaints subsequent to this are not maintainable.

 

Hrishikesh Dutt Vs. The State, (1968) 20 DLR 66.

 

Ss. 195-199 : Requirements under the sections to be strictly followed.If the facts disclose any of the offences mentioned in sections 195 to 199, the formalities required by those sections would have to be observed. When the offence committed is one under section 471 of the" Penal Code, it was illegal to reduce the charge to one under section 474 of the P.P.Code and to prosecute the accused without a complaint under section 476 in order to circumvent the provisions of section 195 to 199 of the Code.

 

Kan Mahe Alam Vs. Crown, 2 PCR 97.

 

Ss.l95(c) and 476 : Section 195(c) says that noAcourt shall take cognizance of an offence under sections, 463, 471, 475 or 476 of the Penal Code—(i) unless such offence is alleged to have been committed by a party in any proceeding in that court, and (ii) in respect of a document produced in such proceeding by such party.—except on a complaint by such a court made in writing and signed by the said court-Section 476 provides that when a court finds that an offence mentioned in section 195(c) has been committed by a person the court may after preliminary inquiry record a finding to that effect and make a complaint signed by the court and forward the accused to a Magistrate of competent jurisdiction.

 

Saleha Khatun Vs. State (1987) 39 DLR 109.

 

S.196A— If a charge is framed in respect of only falsification of accounts and for no other offence, then under the provisions of sec. 196A, no Court would take cognizance of the offence of criminal conspiracy unless the Provincial Government consented to the initiation of the Proceedings.

 

Tofail Ahmed Vs. Crown, 3 DLR 453.

 

S.197 : Purporting to act in the discharge of his official duties—When such a plea not available.

The deceased whilst trying to smuggle a hundred rupee currency note out of Pakistan was caught by the Police and was taken into custody. To remove traces of the existence of the note the deceased swallowed it up and thereupon he was assaulted by the Police (accused) who held him in custody. It was contended on behalf of the accused that the assault had taken place while the accused were acting in discharge of their official duties and as such there could not be any prosecution without sanction under section 197 Cr.P.C.

Held: The assault on the deceased did not take place while he was trying to swallow up the currency note and the assault took place some time after that. It was a cool and calculated act on the part of the appellants to punish him for an act of indiscretion. A prosecution lodged for bringing such an act to book does not require previous sanction under the above section.

 

Md. Shahid Vs. State, (1962) 14 DLR 248.

 

—Government may take disciplinary action against a delinquent official—The purpose of this section is to protect public servants against vexatious prosecution by members of the public. But a more correct view would appear to be that the Government is, by that section, empowered to deal at its option with matters of excess in the discharge of those functions, provided that the excess is within the scope of those functions.

 

S.M.H. Rizvi Vs. Abdus Salam & State (1960) 12 DLR (SC) 103 : (I960) 10 PLR 1210.

 

—Necessity of sanction for prosecution served the purpose against vexatious prosecutions on the one hand and left thei Government free to deal with the officer concerned dcpartmentally on the other.

 

Earned Ghulam Sadiq Vs. Pakistan & others (1961) 13 DLR (SC) 126.

 

—No sanction under section 197 is necessary for prosecuting a public servant for accepting gratification.

 

Lumbhardar Vs. King (1951) 3 DLR (PC)l.

 

—Whether or not sanction was necessary under sec. 197 for the prosecution of a public servant charged with abetment of dacoity and arson, the test to be considered is whether he, as a public servant, could reasonably claim that what he did, he did by .virtue of his office.

 

Aminul Huq Vs. Abdul Wahab (1954) 6 DLR 138.

 

—A public servant can be prosecuted for demanding, for accepting as well as for offering a bribe without any sanction.

 

Md. Ismail Vs. Crown (1954) 6 DLR 152.

 

—Provisions of sections 5(5) of the Pakistan Criminal Law (Amendment) Act (XIX of 1948), being a special Act exclude the provisions of section 197 which is a general Act.

 

Lakshmi Narayan Vs. Slate (1956) 8 DLR (FC) 66.

 

—Acting or purporting to act in the discharge of official duty—The accused was an Inspector of Prices and Supplies under the Government of Pakistan. It was said that in his official capacity he arranged a test purchase in the shop of the complainant on receipt of an information that the complainant was selling scheduled articles above the controlled prices. It is alleged that while he was executing this test purchase plan, he seized a number of marked currency notes belonging to the complainant by assaulting him. The complainant thereupon started criminal proceeding against the accused Inspector of Prices and Supplies on several allegations, but on behalf of the accused an objection was raised that what the accused did was done in discharge of his official duty.

 

Held : The accused can reasonably claim that whatever he did was within the scope of his official duty and even though some of his acts may appear not to be within the precise powers vested in him, yet he did them in virtue of his office, having no private axe to grind against the complainant. The case, therefore, falls within the scope of section 197 of the Criminal Procedure Code.

 

Matiar Rahman Dewan Vs. State (1958) 10 DLR (SC) 17.

 

—Offences requiring sanction and those which do not require sanction,—A Magistrate, at any stage of the proceeding, can come to the conclusion that sanction for some or all the offences is necessary. In respect of the offences for which sanction is not necessary, the Magistrate can proceed with the trial in respect of those cases.

 

Syed Ahmed Vs. State, (1958) 10 DLR (SC)12,

 

1880

Constitution of Pakistan, 1962 -7

Citation: (1958) WDLR(SC) 12, 5 PLD 321, 5 PLD (JK) 8, (1957) 9 DLR 594, 8 PLD (Lah.) 649 (650), (1971) 23 DLR (Kar.) 8, (1966) 18 DLR 412, (1974) 26 DLR 17, (1976) 28 DLR (Appl. Divn) 181, (1985) 37 DLR 167, (1986) 38 DLR 343, (1985) 37 DLR 167, 5 PLD (BJ) 72,

Subject: Constitution of Pakistan

Delivery Date: 2018-09-04

Acting    or    purporting    to    act

"Acting or purporting to act" in the discharge of the official duty—Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted in a sense wider than that covered by the precise acts which the official is authorised by the law to perform. The act must, therefore, be one connected with the performance of those duties and it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties. The complainant was a railway servant, a crew-in-charge, while the accused was a District Traffic Superintendent, an officer superior to the complainant. The complainant started criminal proceedings against, the accused on the allegation that while both of them were travelling in the train in the course of their duties, the accused at a certain station asked the complainant to make over a passenger without ticket to the station-master. Complainant alleged that while he was making out the necessary documents the accused lost temper, slapped him, pulled him by the arm so that his spectacles fell off and snatched away his papers which he returned later. The accused was foul and abusive and hot-tempered towards the complainant over trifling matters and finally, when they were at Barakhata, the accused brought a passenger to him to be dealt with. He could not prepare the document on the platform which was unlighted; so he entered a compartment of the train intending to deal with the passenger there. At this, the accused again became furious, snatched away the complainant's papers and dragged him by his shirt to the station-master and told the station-master : "Put this bugger under lock and key" The station-master kept the complainant under detention until the following day.

 

Held: The assault and hurt being of a minor nature, and being connected directly and inseparably with the discharge of accused's duty; sanction under section 197, Cr.P.Code, would be necessary before the accused is put on his trial. But as regards wrongful confinement, no sanction would be necessary since the accused by ordering the detention of the complainant could not reasonably say that he did that in the discharge of his official duty.

 

Syed Ahmed Vs. State, (1958) WDLR(SC) 12.

 

—Sanction—facts not referred—Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority the sanction is invalid. 5 PLD 321.

 

—Where the accused, a prosecuting D.S.P., had not appeared on summons before the District Magistrate out had applied in revision to High Court for quashing proceedings for want of sanction under section 197.

Held: The petition for revision is premature. 5 PLD (JK) 8.

 

—If an act complained of is directly concerned with the official duties of a public servant so that, if questioned, he could claim to have done it by virtue of his office, sanction would be necessary.

 

A.K.M. Reza Vs. State, (1957) 9 DLR 594.

 

—Sanction for prosecution of a public servant is necessary under section 197, if the offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. 8 PLD (Lah.) 649 (650).

 

—Sanction for prosecution of Government servant—when sanction for such prosecution becomes necessary—The question of sanction would arise only when the .trial court finds that the person complained against is in fact a Government servant and has committed the offence while he was engaged at the relevant time in the discharge of his duty. In case the accused is a Government servant removable from his office by the Central Government, the appropriate authority to give sanction is the Central Government.

 

Muhammad Umar Khan Vs. Yousuf Arab, (1971) 23 DLR (Kar.) 8.

 

—Criminal act such as outraging the modesty of a woman and killing a man while the culprit (a Government servant) was being chased, has no connection with acts done or purported to be done in the discharge of public duty.

 

Rokunuddin Bhuiyan Vs. State, (1966) 18 DLR 412.

 

—The question whether any sanction was required for the prosecution of a public servant who was not a public servant at the time when the prosecution was started against him has been answered by holding that in such a case sanction for prosecution was not necessary.

 

KM. Zakeer Hossain Vs. The Stale (1976) 28 DLR 452.

 

—A Government servant's (here an Assistant Registrar of Co-operative Societies), services were lent to the Chitiaranjan Cotton Milis Ltd., a private limited company (not a statutory body formed under any statute) to look after the interest of that Company's co-operative societies formed with the share of the Company's employees. Company's Board of Directors also appointed him as a trustee to look after the trust fund belonging to the co­operative societies and in that capacity, the allegation is, misappropriated some funds. When put on trial under sections 420/511 and 464 of (he Penal Code he contended that he was, even when his services were lent by the Govt. to the Company, a public servant within the meaning of S. 197 Cr.P.Code and his prosecution without Govt. Sanction was illegal.

 

Held : For his prosecution no sanction was necessary and S.I97 no bar, he, when discharging the function of a trustee of the trust find, was not a public servant within the meaning of section 21 of the Penal Code.

 

M.A. Motaleb Vs. M.A. Ahmed (1974) 26 DLR 17.

 

—Protection afforded by S.197 extends to acts done or purported to have' been done in discharge of duty—It was urged that respondent Bahauddin Ahmed was entitied to Ihe protection provided under section 197 Cr.P.C. inasmuch as he did not act beyond the scope of his official duty in view of the situation created by a procession comprising several ihousands of students and doing various acts of violence disturbing the normal life and thereby creating serious law and

 

order situation in violation of the order promulgated under section 144 Cr.P.C. There is no reas9n to think that whatever was done or purported to have been done was beyond the scope of the official duty of respondent Bahauddin Ahmed. Trend of judicial decisions is to see whether the offence complained of was done or could have been done in the discharge of official duty.

 

F.M. Rashiduzzaman Vs. Bahauddin Ahmed (1976) 28 DLR (Appl. Divn) 181.

 

—Circumstances of the case make it clear that in ihe present case what the accused Police Officer did was in discharge of his official duty. No prosecution permissible without Government sanction.

 

F.M. Rashiduzzaman Vs. Bahauddin Ahmed (1976) 28 DLR (Appl. Divn) 181.

 

—The appellant, an Asstt. Registrar of Co­operative Societies was placed on 19.5.69 at the disposal of the Chittaranjan Cotton Mills for appointment as an Administrative Officer on foreign service basis. On 5.6.69 the appellant was nominated as the Company representative to the Board of Trustees of the Employees Provident Fund Trust. While the appellant was so acting a complaint was lodged with a Sub-Divisional Magistrate to the effect that the appellant had committed fraud by forging the proceeding of a meeting of the Board of Trustees purporting to authorise transfer of Rs. 2,80,000/- from the Provident Fund to the Central Fund. The appellant was charge-sheeted and put on trial and summoned under sections 420/511 and 434 of the Penal Code.

 

Questions arose whether the appellant would be proceeded against without sanction under 197 Cr.P.Code, he claiming that he was public servant and therefore sanction for his prosecution was necessary and he further claimed that offence under sections 420/571 was scheduled offence under the Criminal Law Amendment Act 1958 and such offence was exclusively triable by the Special Judge.

Held: The appellant, an Assistant Registrar of the Co-operative Societies, was a Government servant and his services were placed at the disposal of the Company on foreign service basis. It is manifest that the appellant was an officer of the Government, as he held the post of an Assistant Registrar of the Co-operative Societies. The offence alleged against him was therefore committed in the purported exercise of his duty as a. trustee and so he was entitled to the protection of section 197 of the Code of Criminal Procedure. The offence is exclusively triable by a Special Judge appointed under the said Act. The Magistrate had no jurisdiction to take cognizance of the offence under sectiom420/511 of the Penal Code.

 

Mansur Ahmed Vs. Bangladesh^l977J29^LR (SC) 224.

 

S.197(1)Unless a person is a public servant not removable except with the government sanction, bar against his prosecution cannot be invoked.

 

Shafiqur Rahman Vs. The State (1985) 37 DLR 167

 

—It is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1) of the Code of Criminal Procedure nor even every act done by him while he is actually engaged in the performance of his official duties but if the act complained of is directly concerned with his official duties so that, if qwefflfened, it could be claimed to have been done by virtue of the office, then sanction would be necessary.

 

Sudhir Das Gupta Vs. Bhupal Chandra Chowdhury. (1986) 38 DLR 343.

 

—Unless a person is a public servant riot removable except with the government sanction bal against his prosecution cannot be invoked. Shafiqur Rahman Vs. The State (1985) 37 DLR 167 .

 

S.198 : Father of a married girl—if can complain—The father of a girl of 20 years of age, married, and living with her husband Such person is not competent for purpose of complaint under sec. 500, P.P.C., in respect of imputations of unchastity against the girl. 5 PLD (BJ) 72.

 

—Parents of girls living with them when defamed scandalously are persons aggrieved within the meaning of section 198 and as such can file a complaint in Court under section 500 P.P.Code.

 

Hassan Razaki Vs. Mst Meharun Nisa, (1971) 23 DLR (Kar.) 14.

 

S.199Section 497 of the Penal Code does not apply to a widow and that taking of cognizance under section 497 of the Penal Code by the Sub divisional Magistrate in violation of the provision of section 199 Cr.P.C. is illegal.

 

Nurul Huq Bahadur Vs. Bibi Sakina (1985) 37 DLR 333.

 

S. 200—rln case where an accused after conviction complains of the omission to examine the complainant under section 200, the omission is one which can be cured under section 537 of the Code.

 

Anath Mondal Vs. Bankim Chandra (1957) 9 DLR 362.

 

—A Magistrate acts illegally when ignoring the mandatory provisions of section 202 Cr.P.C., he sends the petitioner's case for enquiry and report to a Magistrate without first examining the complainant under section 200, Cr.P.Code.

 

Moihura Mohan De. Vs. Abdul Mannan (1950) 2 DLR 77.

 

-—Object of the section—One of the main objects of section 200 is to protect the public servant against false, frivolous or vexatious complaints filed against them in Criminal Courts and the Magistrates must not lightly accept such complaints and proceed, to issue processes until they have thoroughly sifted the allegations.

 

Hashim Haji Sharif Vs. Mir Khan 2 PLD (Bal.) 7.

 

—Taking cognizance of an offence without examining the complainant— Proceeding quashed—The complainant filed an application before a Magistrate (S.D.M.) Nawabshah alleging that the petitioner Mir Muhammad had taken away his wife. The Magistrate without registering any case passed an order directing the Police Nawabshah to "Please bind down the following persons to appear in this Court on 2-8-63".

Held: The order oTthe S.D.M. must be quashed as he has proceeded to take cognizance of the offence and had failed to examine the complainant on oath as required under section 200 Cr.P.Code.

 

Mir Muhammad Khan Vs. State. (1964) 16 DLR (WP) 95.

 

—Omission to examine the complainant not an illegality—Sections 200 and 202 which impose upon the Magistrate the duty of examining the complainant on oath are only applicable where the Magistrate proposes to take proceedings upon the information supplied by the complainant.

 

Omission to examine the complainant on oath is not in any event an illegality but a mere irregularity which will not vitiate the trial unless substantial prejudice has been caused.

 

Badsha Mia Vs. State (1958) 10 DLR 413.

 

—What the Magistrate is competent to do under the section—Under sec. 200 subject to certain exceptions mentioned in the section itself, when a complaint is made to a Magistrate, he shall at once examine the complainant on oath and reduce the examination to writing which must be signed by himself as well as by the complainant . He may issue the process to the accused person at once, but it is also open to him to postpone the issue of the process for compelling the attendance of a person complained against for reasons to be recorded in writing and make a preliminary inquiry into the case, either himself or through a Magistrate subordinate to him or by a Police officer or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.

 

Fateh Sher Vs. Khan Yasin Khan (1959) 11 DLR (WP) 134: (1959) PLD (Lah) 660.

 

—Section 200 of the Code lays down lhat when a Magistrate takes cognizance of an offence of complaint, he shall at once examine the complainant on oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate but does not lay down that the examination of the complainant is to be reduced to writing by the Magistrate himself.

 

S. Iqbal Ilossain Vs. S. Irshad Hossain (1959) 11 DLR (WP) 9: (1958) PLD (B.J.) 9.

 

—It is not essential that the Magistrate in his own hand should make a record or memorandum of examination of the complainant.

 

Anwar Mahmood Vs. Rashiduz-Zaman, (1959) 11 DLR (WP) 77.

 

-—Examination of the complainant must follow and not precede the taking of cognizance which means after he has applied his mind to the case to start proceedings.

 

Azizur Rahman Vs. State (1960) 12 DLR 489 :(1960) PLD (Dae.) 631.

 

—Normally the omission to examine the complainant as required by sec.200 is a serious irregularity, which necessarily vitiates the proceedings. The question to be seen in each case is whether the person raising the objection has been prejudiced.

 

HanifBepari Vs. Sumati Mala (1950) 2 DLR141.

 

—Order for inquiry without examination of the complainant, illegal.

In the present case it appears that the Sub-Divisional Magistrate acted illegally in summoning the accused persons on the ground that he had made an order for inquiry without examination of the complaint.

 

Alauddin Ahmed Vs. State, (Naresh Chandra Kundu), (1968) 20 DLR 590.

 

—Trial before the Magistrate commences when the Magistrate takes cognizance of the case—The case of a Magistrate taking cognizance of a case triable by himself, stands on a different footing. The commencement of a trial takes place only when the Magistrate takes cognizance of the case, and not earlier.

 

Mohammad Alam and 3 others Vs. The State, (1967) 19 DLR (SC) 19.

 

S.200(aa) : Law does ,not require any examination of a public servant when acting u/s 200(aa). The examination of the complaint in a case in which the complaint has been made by a public servant is not necessary as per. provision of law under Sec. 200 (aa) of Cr.P.C.

 

Akhtar Hossain Mollah Vs. Abdur Rashid Mollah, (1973) 25 DLR 471.

 

S.200 : Examination of the complainant u/s.200 necessary but non-examination always not fatal—In the instant case, on the complainant's F.I.R. the police had first investigated the case but submitted final report (true). On perusal of that police report the Magistrate was quite competent to take cognizance of the offence against the accused though not so recommended by the. police, even without waiting for a Naraji-petition or without directing a judicial enquiry, provided there were sufficient materials in the police report against the~accused.

 

Md. 'Zillur Rahim Vs. Nazmul Karim Sufi (1976) 28 DLR 1.

 

—Cognizance of case taken, after submission of final report by the police, on the basis of the complainant's deposition in a judicial enquiry directed by the Court is proper even though the complainant is not examined u/s.200.

 

Md. Zillur Rahim Vs. Nazmul Karim Sufi (1976) 28 DLR 1.

 

—Taking cognizance of a case by examination of the complainant after final report by police—When the police do not recommend the prosecution of the accused and submitted final report the learned Magistrate may direct a judicial enquiry and if in that inquiry the complainant deposes then he can take cognizance. .

 

Charag AH Vs. State (1977) 29 DLR 25.

 

—Examination of the complainant on oath, when taking cognizance of an offence u/s.200 Cr.P.Code mandatory. Failure to do so renders the proceeding liable to be qua shed.

 

Mihir Lai Saha Poddar Vs. ZhunuRani Saha (1985) 37DLR 227.

 

Failure to examine the complainant is a . irregularity, not an illegality.

 

Siddique Ahmed Vs. The State (1985) 37 DLR 225.

 

The woftis "If any" mean the SDO may examine witnesses who are present

It can summon the accused on merely examining the complainant. The words "if any" occurring in section 200 Cr.P.C. make it clear that the Sub-Divisional Magistrate shall examine witnesses if they are present, but he commits no illegality if he summons the accused persons only after examining the complainant in the absence of any other witness.

 

Gourchanda Samaddar Vs. The State (1982) 34 DLR 237.

 

—Procedure which a Magistrate may follow when taking cognizance of an Offence u/s. 200 as well as u/s. 202(1). Under section 200 Cr.P.C. any Magistrate taking cognizance of an offence may examine the complainant and the witnesses present upon oath and after reducing the substance of such examination may issue'processes for the attendance of the accused in accordance with provisions of section 204(1) Cr.P.C- if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding. But any Magistrate on receipt of a complaint may in accordance with the provisions of section 202(1) Cr.P.C. postpone the issue of processes for compelling the attendance of the person complained against and either inquire into the case himself or direct an inquiry or investigation by any Magistrate subordinate to him or by a police officer or by any other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Nazimuddin Ahmed Vs. State (1982) 34 DLR 424.

, —Failure to examine a complainant—Serious irregularity. It must, however, be seen whether the failure has prejudicially affected the complainant. A failure to follow the provisions of section 200 in respect of examination of the complainant does not entail invalidation of the proceedings taken.

 

Elahi Bus Vs. State (1987)39 DLR 137.

—Enquiry u/s.202 without examination of the complainant u/s.200, held illegal.

 

Nurul Huq Bahadur Vs. Bibi Sakina (1985) 37 DLR 333.

 

Ss. 200 and 202(1)A complaint cannot be senffor judicial enquiry or investigation under section 202(1) Cr.P.C. unless the complainant has been examined on oath.

 

Nur Mohammad Mondql Vs. Md. Abul Hossain & others (1976) 28 DLR 389

1881

Constitution of Pakistan, 1962 -8

Citation: (1983) 35 DLR 140, (1959) 11 DLR (WP) 42, (1964) 16 DLR (Dae) 334, (1959) 11 DLR (WP) 134 : (1959) PLD (Lah.) 660, (1958) 10 DLR 413, (1961) 13 DLR 9 : (1961) PLD(Dac.)533, (1954) 6 DLR (WPC);205 PLD (1950) (BJ.) 75, (1954) 6 DLR (WPC) 205, (1954) 6 DL

Subject: Constitution of Pakistan

Delivery Date: 2018-09-04

Ss, 200, 200(1), 202(2A) & 202(2B) Cognizance of an offence on complaint has not been restricted to those offences'which are triable by the Magistrate only under section 200 Cr.P.C. The Magistrate can take cognizance of any offence. He can issue processes against the accused under section 204(1) Cr.P.C. in respect of any offence of which he takes cognizance, whether the offence is triable exclusively by the Court of Sessions or not. The second provisio to section 202(1) Cr.P.C. inserted by the Ordinance No. XXIV of 1982 provides by way of clarification, that in complaint cases which appear to be triable by the Court of Session, if the Magistrate decides to postpone the issue of process, he may take or cause to be made an enquiry or investigation to ascertain the truth or falsity of the complaint. The proviso to section

202(2A) provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath and section 202(2B) provides that the Magistrate shall be competent to accept the final report submitted by the police and discharge the accused in cases triable by the Magistrate or exclusively by the Court of Sessions.

 

Abdus Salam Master Vs. The State (1983) 35 DLR 140.

 

S.   200(1)Issuing   of   process   not  a part   of   taking   cognizance   of   offence

Under section 200(1) a Magistrate taking cognizance of offence is to issue process if in his opinion there is sufficient ground for proceeding with the case. This means that the first step to be taken by a Magistrate "taking cognizance of an offence" on a complaint is to examine the complainant and then to issue process for commencing proceedings, Issuing of process is therefore not a part of taking cognizance.

 

State Vs. All Md. (1959) 11 DLR (WP) 42.

 

—When a complaint is laid before a Court which has no territorial jurisdiction to entertain it, the proper course to follow is to return the complaint for presentation to the proper Court under section 201 Cr.P.Code.

 

Govt. of East Pakistan Vs. Sokel (1964) 16 DLR (Dae) 334.

 

S. 202—Inquiring authority should give ample opportunity to the complainant to prove his allegation.

 

Fateh Sher Vs. Khan Yasin Khan (1959) 11 DLR (WP) 134 : (1959) PLD (Lah.) 660.

 

—Imposes upon the Magistrate the duty of examining the complainant on oath—is only applicable where the Magistrate proposes to take proceedings upon the information supplied by the complainant. Omission to examine (he complainant on oath is not in any event an illegality but a mere irregularity which will not vitiate the trial unless substantial prejudice has been caused.

 

Badsha Mia Vs. State (1958) 10 DLR 413.

 

—Second  inquiry not objectionable—A

Magistrate is competent to direct another Magistrate subordinate to him to make a further inquiry if he is not satisfied with the result of a previous inquiry. There is nothing in the terms of the amended section 202 which would prevent a further inquiry.

 

M.N. Mostafa Vs. Zaharat Ara (1961) 13 DLR 9 : (1961) PLD(Dac.)533.

 

—Complaint   sent    to    Police—Police duty—When a complaint is sent to the Police under section 202 for enquiry and report, they are to investigate precisely in the same manner and arrest in the same way as they would have done under section 154, if they were approached directly.

 

Md, Shaft Vs. Crown (1954) 6 DLR (WPC);205 PLD (1950) (BJ.) 75.

—When the Police receives a complaint referred to them by a Magistrate under section 202 for investigation, it is not competent to the Police to investigate the offence independently of the Magistrate's directions and send up the accused for trial upon a charge-sheet.

 

Md. Shafi Vs. Crown (1954) 6 DLR (WPC) 205.

 

—If the Magistrate entertains a charge-sheet prepared by the Police independently of the order of the Magistrate under section 202, he would be ignoring the provisions of sees. 203 and 204 of the Code and his proceedings would not be warranted by law. The Magistrate can, however, adopt the charge-sheet as a report by the Police under section 202, Cr.P.Code.

 

—On receipt of a report of enquiry under section 202, the trial Magistrate should either summon the accused or dismiss the complaint.

 

AminulHaq Vs. Abdul Wahab (1954) 6 DLR 138.

 

—After the issue of the process, the Magistrate should proceed with the trial. He cannot direct an investigation under section 202. Habibullah Khan Vs. MM. Khan (1950) 2 PCR 230.

 

—When once a Magistrate has issued a process under section 202 Cr.P.C., there is no scope or provisions in the Code for deputing any person, Muktear or any other for the purpose of holding a local enquiry. Samda Vs. Mahmadulla 2 DLR 18.

 

—Complaint (or report) made not enough to disclose a prima facie case

Necessity of evidence. Proof of sanction—In a case where the initial complaint or report is of such a nature that it is doubtful whether prima facie case of the offences alleged is made out, a Magistrate would be fully within his rights in calling for evidence before deciding that the complaint or report should be rejected. Equally, if he feels the necessity or otherwise of sanction, as a prerequisite to the competency of a case, the Magistrate would be justified in calling for proof of such facts as would enable him to be satisfied that he could not proceed without sanction. But cases are conceivable in which the facts alleged in a complaint or report do not constitute a prima facie case of the offences alleged, and in such a case, if a Magistrate were to call for evidence, the duty of the Court of correction would be to reverse that order and to dismiss the complaint or report. The case is similar where upon a correct view of the law, the complaint before a Magistrate cannot be proceeded with in the absence of sanction by reason of the fact alleged. S.M.H. Rizvi Vs. Abdus Salam (1960) 12 DLR (SC) 103.

 

—Witnesses' statement before Magistrate holding enquiry under section 202 may implicate person not named before the I.O.—Magistrate taking cognizance of the case on the report made u/s. 202 is not competent to go into the question whether the accused has been implicated out of enmity—this shall be matter of the court trying the accused. Abdus Salam Master Vs. The Slate (1984) 36 DLR (AD) 58.

 

—The object of the Code of Criminal Procedure is to prevent the person complained against from harassment by being asked to appear or to submit explanation where in the opinion of the Magistrate no sufficient ground for issuing process against the person complained of has been made out. Md. Showkat Rabbani Vs. Md. Showkat Osmani (1983) 35 DLR 176.

 

—In an enquiry u/s 202 a Magistrate has no jurisdiction to ask a person complained against to take part in any manner in the enquiry and cannot be called upon to submit any explanation. These would be wholly unwarranted. Md. Showkat Rabbani Vs. Md. Showkat Osmani (1983) 35 DLR 176.

 

complaint may also be entertained if the order of dismissal of the previous complaint had been passed on misunderstanding of the scope and extent of enquiry u/s. 202 Cr.P.Code. Abdus Salam Vs. State (1984) 36 DLR (AD) 58.

 

— Procedure . followed generally by the magistrate, when police submits final report, is to direct further investigation by the police.  When Naraji petition is filed against police final report, the Magistrate may take cognizance after examination of the complaint or may follow the procedure u/s.202. Abdus Salam Vs. State(1984) 36 DLR (AD) 58.

 

receipt of a complaint, Magistrate directs an enquiry by the police to ascertain its truth or otherwise — But before receipt of the inquiry report he took cognizance of the case and issued summons against the accused — This is illegal. Harun Mir. Vs. The State (1983) 35 DLR 207.

 

 — Enquiry u/s. 202 without the examination of the complainant u/s.200 held illegal. Nurul Huq Bahadur Vs. BMSakina (1985) 37 DLR 335.

 

— Where Naraji application against showing the person in column 2 of the charge-sheet is rejected by the Magistrate, that amounts to the dismissal of the complaint and that the person concerned has been discharged by the Magistrate. In that event Sessions Judge could not proceed against him u/s. 193 Cr.P.Code. Abdur Razzaque Vs. Slate (1983) 35 DLR 103.

 

Ss. 202 and 190(a)(b) In a complaint case the Magistrate is to decide after the statement of the complainant and his witnesses whether to proceed with the trial of the case. In cases triable by Sessions Court the Magistrate to decide whether cognizance to be taken. A. Salam Master Vs. State (1983) 35 DLR 140.

 

Ss. 202 and 203 — Magistrate inquiring under section 202 not to weigh evidence-The trying Magistrate acting under section 203 has to exercise his independent judgment on receipt of report under section 202. Ansaruddin Molla Vs. Hamid, (1966) 18 DLR 295.

 

—Ordinarily a Magistrate has to accept complainant's statement on oath but when he considers the statement baseless, or that no offence is made out, he has to dismiss it—Magistrate should state reasons for postponing process but omission does not vitiate proceedings. Anwar Mahmood Vs. Rashiduzzaman (1959) 11 DLR (WP) 77 : (1958) PLD (Lah.) 186.

 

—Magistrate taking cognizance of the offence—Complaint cannot be dismissed unless the result of the investigation is before him. Where the inquiring Magistrate without inquiring into the fact says that the complaint should be dismissed because of the delaying tactics of the complainant, it cannot be said that "the result of the investigation or inquiry is before him." Fateh Sher Vs. Khan Yasin Khan (1959)' 11 DLR (WP) 134 : (1959) PLD (Lah.) 660.

 

S. 202(1)—Where the trying Magistrate directed an enquiry and report into the accusation made by the complainant there is no illegality, if he, due to circumstances, withdraws his order for enquiry and report and tries the accused and finally convicts him. Efan alias Efaruddin Vs. The State, (1973) 25 DLR 198.

 

—It was contended on behalf of the accused that the Magistrate having once directed an enquiry under section 202(1) for ascertaining the truth or otherwise of the complaint committed an illegality in issuing process summoning the accused without waiting for the report and this has prejudiced the accused in his trial and in support of this contention referred to certain decisions.      

                                 ,

Held : In, the case referred to, the Magistrate issued the summon against the accused while the order for enquiry remained in force. But in the present case the order of enquiry was withdrawn. The Magistrate did not, therefore, commit any illegality in acting in the manner he did. Further after the conclusion of the trial in connection with the petitioners there was no scope to argue regarding satisfaction of the Magistrate in the initial stage. Efan Vs. State, (1973) 25 DLR 198.

—Issue of summons without waiting for the return required under section 202(1) is illegal. Atar AH Shah Vs. Reazuddin (1957) 9 DLR 69.

 

Issue of warrant against accused after asking the Police to report and before the receipt of Police report—

illegal. The Magistrate is quite competent to take action on the Police report already submitted to him, but inasmuch as he asked for further report he is bound to wait for the same. Abdul Majid Vs. State (1962) 14 DLR 517.

 

—Jurisdiction not affected—When the order'of the Magistrate is attacked on the ground of non-compliance with the requirements of section 202(1).

 

Held : such a fault in procedure might have important consequences but that would not take away the Magistrate's jurisdiction to try the accused. Lumbhardar Vs. King (1951) 3 DLR PCI.

 

—Expression "an enquiry" also signifies more than one enquiry for the purpose of ascertaining truth or otherwise of the complaint—If, therefore, the first enquiry is found to be unsatisfactory a second enquiry may validly be held. Nazimuddin Ahmed Vs. State (1982) 34 DLR 424.

 

S. 202(2A)Judicial enquiry— accused's right to cross-examine witness—

During judicial enquiry under sub-section (2A) of section 202, the accused has got no locus standi and cannot cross-examine the witnesses. Bhubdneswar Vs. Udbigneswas (1953) 5 DLR 112.

 

—If the Magistrate finds the complaint to be true and if he finds that.the offence is triable by Sessions Court, there is no scope for 2nd enquiry . but he shall proceed u/s 202(2A).

 

If the Magistrate is of the opinion that the truth of the complaint has been established prima facie by the first enquiry and the offence complained of is triable exclusively by the Court of Sessions, there is no scope for a second inquiry and under section 202/(2A) Cr.P.C. he shall call upon the complainant to produce all his witnesses and examine them on oath. Naziruddin Ahmed Vs. State (1982) 34 DLR 424.

 

—Proviso—The scope and object of an enquiry under the old sub-section (2A) was to, ascertain whether an offence has been prima facie committed and whether process should issue. The object and scope of an enquiry under the amended sub-section (2A) of section 202 appears to remain the same. The proviso to sub-section (2A) which has been added by the amendment only provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. Abdul Bari Vs. State (1981) 33 DLR 89.

 

—Magistrate's duty when a case is triable by a Court of Session—Under the proviso added in sub-section (2A) of section 202 by the Law Reforms Ordinance, 1978 when it appears to the Magistrate that the offence complained of is tria*ble exclusively by the Court of Session, he shall call upon the complainant to produce all hrs witnesses and examine them on oath and thereafter he is to send the case to the Court of Session in terms of section 205 Cr.P.C. It is not for the Magistrate to weigh and sift the evidence, relating to an offence triable exclusively' by the Court of Session. Suruj Meah Vs. Rahim Ullah (1981) 33 DLR 8.

 

—If the offences found by the Magistrate are exclusively triable by a court of session he shall require the complainant to produce his witnesses and then examine them on oath—This is what has been effected by the amendment of section 202 with the introduction of the proviso to sub-section (2A) of S.202. Abdul Bari Vs. State (1981) 33 DLR 89.

Ss. 202(2A) and 205C—From the allegation it is apparent that the alleged offence was exclusively triable by the Scissions Judge. As per provision of the Law Reforms Ordinance 1978 now the learned Magistrate is to send the case to the Sessions Judge for trial if it is exclusively triable by the Court of Sessions.

 

When the case was sent to the Court of Sessions Judge, the narazi application filed by the petitioner before learned Sessions Judge was maintainable and the Sessions Judge had jurisdiction to entertain the Narazi application as the record of the case was before him.

 

When the case is exclusively triable by the Court of Sessions the learned Magistrate is to examine all the witnesses produced before him and thereafter he is to send the case to the Sessions Judge. In the present case it appears that the learned Magistrate did not examine all the witnesses adduced by the complainant, but he accepted the Final Report filed by the Police and discharged the accused. Khorshed Alam Vs. State. (1983) 35 DLR 401.

 

S. 203The hearing of a case was fixed for the 15th September, 1951. No order was passed on the date, but on the following day the case was dismissed and no order was passed as to the discharge or acquittal of the accused:

Held: The order dismissing the complaint under section 203 is illegal. Habibullah Vs. Md. H. Khan 2 PCR 230.

 

—Complaint dismissed under section 203, is a matter still at inquiry stage—Trial begins when accused is charged and called upon to answer. Syed Altaf Hussain Shah Vs. State (1966) 18 DLR (WP) 39.

 

Complaint—once dismissed cannot be received by the same Court—Power of revival rests with the Revising Court—Fresh complaint cannot relate back to the one dismissed before. B. Fane Sounders Vs. S. Abdul Saner, (1955) 7 DLR (WP) 99.

 

—Order of a Magistrate on a police report cancelling a case against a person before he takes cognizance of the case is not a judicial order and as such not open to revision. Muhammad Farid Vs. The State (1971) 23 DLR (Lah.) 6.

 

—Dismissal of the complaint under section 203 Cr.P.C. does not mean discharge or acquittal. In such a case of dismissal of complaint an accused may be proceeded afresh. Muhammad Miah Vs. State (1971) 23 DLR 121.

 

1882

Constitution of Pakistan, 1962 -9

Citation: (1961) 13 DLR 9 :10 PLR (Dae.) 1157 : (1961 )PLD (Dae.) 533, (1962) 14 DLR 511, (1964) 16 DLR (WP) 34, (1962) 14 DLR(WP) 25 : (1962) PID (Lah.)411, (1950) 2 DLR 18 : 2 P CR 230, (1970) 22 DLR (WP) 92, (1980) 32 DLR (AD) 247, (1950) 2 DLR 18 : 2 PLR 23

Subject: Constitution of Pakistan

Delivery Date: 2018-09-05

Ss. 203 & 204—The Additional District Magistrate could not have transferred the case to the Sub-Divisional Officer merely to decide whether steps should be taken under section 203 or 204 of the Code. Such a course would be illegal.

 

M.N. Mustafa Vs. Zaharat Ara (1961) 13 DLR 9 :10 PLR (Dae.) 1157 : (1961 )PLD (Dae.) 533.

 

Ss. 203 & 204(1)Trying Magistrate has the power to discharge the accused person under section 204(1)—Magistrate's order discharging an accused on police report is a judicial order. The wording of section 204 of the Code seems to suggest that there may be a case in which the Magistrate has taken cognizance, but in which in his opinion, there is no sufficient ground for proceeding; and it is quite true that the Code does not provide what is to happen in that case. The Magistrate must in Such a case discharge the accused.

 

When a Magistrate discharges an accused he is making an order similar in character to the order which he can make under section 203 of the Code, where he acts, on a report of the police or an investigation undertaken at his request.

Although the Code does not expressly so provide, there is no doubt that a Magistrate can act upon the report of a Police Officer, as to the result of a Police inquiry undertaken under the Code in accordance with the powers conferred upon the Police, and can discharge an accused person without further inquiry. But in such a case the order of the Magistrate is a judicial order which would be open to the review by the High Court.

 

Abu Vs. Hap Abdul Gani (1962) 14 DLR 511.

 

S.204Issue of process not upon evidence—Where the Magistrate summons the petitioner not after weighing the evidence against him but merely upon the request to that effect made by'the prosecuting Police Sub-inspector—such an order cannot be upheld.

 

Mirza Muhammad Abbas Vs. State (1964) 16 DLR (WP) 34.

 

—Issuing    warrant     "in     the    first instance"—where according to fourth column of Schedule II, Criminal Procedure Code, a summons should issue—Illegal

 

A.I. Khalid Vs. Khan Golam QwdefKhan (1962) 14 DLR(WP) 25 : (1962) PID (Lah.)411.

 

—When once the Magistrate has issued a process under section 204 there is no scope or provision in the Code for deputing any person for local inquiry.

 

Samda Vs. Mahmadulla (1950) 2 DLR 18 : 2 P CR 230.

-^-Enquiry Magistrate is invested with powers to summon a person as accused on the basis of 'prima facie' inculpating evidence notwithstanding police finding to the contrary ^ Enquiry Magistrate after examining complaint summoned two persons as accused who were not sent up by police as accused but were mentioned in column 2 of the clallan sheet.

 

Held: Order of Magistrate summoning the accused faultless.

 

Md. Nawaz Vs. Khan Md. (1970) 22 DLR (WP) 92.

 

Magistrate's   wide   power   to   issue process. Magistrate has been given the power for using discretion whether to proceed by way of issuing processes or not by the Court. If the Magistrate having followed the procedure laid down in the Code can exercise his judicial discretion as to whether he ought to issue processes or not the High Courl wiJl respect his decision and will be slow to disturb his order that he has passed.

 

The complainant filed a petition to summon Ihe discharged accused, on the ground that the evidence made out & prima facie case against them. The trying Magistrate rejected the petition observing: "This is a police case and Court-cannot include' the non-sent up accused persons in framing charges at this stage. Prayer rejected—Court will lake cognizance against accused persons who arc sent up for trial only by the I.O."

 

Held ; The trying Magistrate in the instant case wholly erred in law when he declined to consider the case of the present appellants on the ground that this being a police case and since the police did not submit charge-sheet, he is not authorised by law to take cognizance against Jhese appellants.

 

Abdul Jabbar Khan Vs. State (1980) 32 DLR (AD) 247.

 

—After issue of process direction for local enquiry not proper—There is no warrant for a practice of sending out Jvtuktears to hold local enquiries when once process under section 204 has been issued.

 

Samda Vs. Mahmadulla (1950) 2 DLR 18 : 2 PLR 230.

 

8.204(1)Issue of warrant against accused after asking the Police to report and before the receipt of Police report. THe Magistrate is quite competent to take action on the Police report already submitted to him, but inasmuch as he asked for further report he is bound to wait for the same.

 

Abdul Majid Vs. Stale (1962) 14 DLR 517.

8.204(3)Complaint dismissed for default under section 204(3)—Fresh complaint competent but discretion to entertain it must be exercised judiciously.

 

B. Fane'-Saunders Vs. A. Sattar (1955) 7 DLR (WPC) 99.

 

—Complaint once dismissed cannot be revived by the same Court—Power of revival rests with revising Courts.

 

B. Fane-Saunders Vs. A. Saltar (1955) 7 DLR (WPC) 99.

 

8.205Inherent power of the Court-Absence of any specific provisions in the Code Court has the power to pass necessary orders for ends of justice. Exemption of the accused from attendance in a warrant case—Court has got inherent power to pass such an order.

 

Nalini Kanta^en Vs. M. Siddique (1962) 14 DLR 355.

 

— Pleader may be examined under section 342 on behalf of the accused— Where the accused is exempted from appearance in Court under section 205 and is permitted to be represented by a pleader, the latter can be examined under section 342 of the Code on behalf of the accused.

 

Crown Vs. Jahan Dad (1954) 6 DLR (WPC) 17.

 

—Applicability of Sec. 205 in regard to exemption of the accused from attendance. A case where a warrant has; been issued, against the accused at the first instance is not a case to which the provision of section 205 ca'n be applied whereby the personal attendance of the accused could be dispensed with.

 

Nalini Kama Sen Vs. M. Siddique (1962) 14 DLR 355.

 

S .205B & 205C—Under the new section 205B read with section 205C the Magistrate has to comply with the provision laid down in section 205B and send the case to court of session as provided in section 205C.

 

Abdul Bari Vs. State (1981) 33 DLR 89.

 

S.205CAll necessary materials to be sent when the Magistrate sends a case to the Sessions Court for trial.

 

Abdus Salam Master Vs. State (1983) 35 DLR 140.

 

S . 205C and 205CCThe Naraji petition filed by the informant ought to have been disposed of by the Sub-Divisional Magistrate in accordance with the provisions provided under Chapter XVI of the Code of Criminal Procedure, and if he were of the opinion that there were sufficient grounds for proceeding against those discharged accused persons for including the alleged offence under section 329 P.C. he was to take steps either u/s. 205C or 205CC Criminal Procedure Code or as the circumstances of the case would warrant.

 

Abdus Salik Vs. State (1983) 35 DLR 425.

 

—Court of Sessions precluded from taking cognizance of an offence as a court of original jurisdiction—So far as the Court of Sessions is concerned, proceeding must initiate before a Magistrate as provided in section 190 Cr.P.C. A Magistrate taking cognizance of an offence issues process under section 204 thereof. Section 205C provides, inter alia, that when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall send the case to the Court of Sessions. The Court of Session is precluded from taking cognizance of an offence as a Court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf.

 

Abdur Razzaque Vs. Stale (1983) 35 DLR 103.

 

S.208Failure of Magistrate to summon witnesses for the defence at the request of the defence counsel vitiates the order of commitment.

 

Abbas Shah Vs. State (1959) 11 DLR (WP) ts;(1958) PLD Lah. 742.

 

 

—Magistrate's duty to follow the provisions of law very carefully—In.all serious cases which may be committed, the law protects and safeguards the interest of the accused at each and every stage. The committing Magistrate, should, therefore, be very alert in watching the interests of the accused and should refrain from doing anything which might violate the statutory provisions of law contained in section 208, 209 210, 211, 212 and 213.

 

Shal Khan Vs. State (1959) 11 DLR (WP)65 : 1959 PLD Lah. 55.

 

—-Magistrate passing order of committal without considering defence—Commitment order illegal. The committing Magistrate directed the accused to put in a list of defence witnesses wilhin two days but, holding that section 208 was to be read with section 212 of the Code, proceeded to commit the accused for trial by the Court of Sessions before a list of defence witnesses was put in before him.

 

Held: The accused may put in a list of witnesses under sub-sec. (1) of sec. 208 and, on such an application being put in the Magistrate is bound under sub-section (3) of section 208 to issue process unless, for reasons recorded, he deems it unnecessary. This is a mandatory provision of law and a commitment made without such compliance is illegal.

 

Abbas Shah Vs. Stale (1959) 11 DLR (WP) i;(1958) PLD (Lah.) 742.

 

S. 208(2)Right of cross-examination arises immediately after the examination-in-chief is over and the accused cannot as of right in an enquiry under Ch. XVIII of the Cr.P.C., reserve the cross-examination till the examination-in-chief of all P.Ws. is over.

 

Wazed All Vs. State (1956) 8 DLR 269.

 

S.209—"Not sufficient grounds for committing the .accused person for trial." Functions which the Magistrate conducting an enquiry under Chap. XVIII of Criminal Procedure Code is called upo™ to discharge is just to see whether the evidence led by the prosecution has established a prima facie case so that the accused may be committed for trial to the Court of Sessions. The Magistrate is not to weigh the evidence and the circumstances of the case for and against for the purpose of finding out the guilt or otherwise of the accused—-a task which is to be left to the Sessions Court. No doubt, the Magistrate conducting the enquiry under section 209 of the Code has to consider (he evidence and circumstances of the case but this is limited to the function of peeing that the case can filly go for trial by Sessions Court. He can discharge the accused if the evidence is so inadequate that no reasonable person will commit him to undergo the unnecessary harassment of a trial.

 

Abdul Gani Chaklader Vs. Gulwar All (1965) 17 DLR (Dae.) 218.

 

S. 209—Discharge order on merits is not a bar to a fresh trial before a different tribunal with more materials.

 

Pir Badshah Vs. State (1963) 15 DLR (SC) 55.

 

—A Magistrate can discharge the accused where no prima facie case is made out. In case where the important witnesses appear to be totally unworthy of credit and the case bristles with improbabilities it is rightly his duty to discharge the accused.

 

Radha Ballav Vs. Santosh Chandra Shaha (1960) 12 DLR 72:(1960)PLD (Dae.)371.

 

—Preliminary inquiry for commitment to Sessions—Magistrate in the first instance, to decide on evidence, of what offence the accused should be charged and then decide whether to commit the accused to the Sessions for trial, or try under his own powers.

 

Ahmed Khan Vs. Stale (1963)15DLR(SC)1.

 

—Magistrate's power to commit to Sessions Court under section 201 or to discharge the accused under section 209— Proper exercise of the power—Section 209 makes obligatory on the Magistrate holding the enquiry to discharge (he accused in case there arc not .sufficient grounds for committing him for trial. To

discharge this function the Magistrate has of necessity to appreciate the evidence. But he must bear in mind that the purpose of the inquiry is only to determine if there are sufficient grounds for mak'ing the accused stand a trial and not decide about his guilt. He should take care to sec that he docs not trespass into the province of the Sessions Court which alone can try the accused,

 

llariballav Shaha Roy Vs. Gopiballav Shaha and State (1959) 11 DLR (SC) 394 : (1959) 9 PLR 1347 : (1959) PLD (SC) 347.

 

—Omission to frame a charge by a Magistrate in respect of an offence exclusively triable by Sessions Court, amounts to discharging the accused, or in other words, not making an order of commitment amounts to making an order of discharge.

 

Muhammad Ishaque and others Vs. Md. Ama Mia (1959) 11 DLR (SC) 394.

 

—No evidence in Police charge-sheet—Accused may be discharged before recording evidence if there is no evidence against him in the Police charge-sheet. 8 PLD (Sind) 262.

 

Order discharging an accused not made on merits—No bar to fresh prosecution of the accused on the same facts by the Magistrate—After an order discharging an accused is passed, if the Magistrate can entertain a fresh complaint and initiate a fresh prosecution, he may also revive the earlier complaint treating the application for revival as a fresh complaint.

 

In the present case the Magistrate while reviving the case issued fresh warrants of arrest against the accused and that means that the Magistrate treated the application for revival as a fresh complaint.

 

Rosmaternessa Vs. Saha Murtaza Ali (1970) 22 DLR 455.

 

—Magistrate should examine the accused in those cases where there is anything for him to explain. Where he fails to exercise that discretion, it \SiA the highest an irregularity.

 

Marium Bewa Vs. Ali Muddin Mondal (1956) 8 DLR 156 (157).

 

—"Sufficient grounds" mean credible evidence. (7956) 8 DLR 536.

 

1883

Constitution of Pakistan, 1962 (Bail)

Citation: (1962) 14 DLR (SC) 321, (1953) 5 DLR (FC) 143 (150), (1962) 14 DLR (SC) 321, (1956) 8 DLR 184, (1953) 5 DLR (FC) 143 (149), (1973) 25 DLR (SC) 45, (1953) 5 DLR (FC) 143 (153), (1958) 10 DLR (WP) 3, (1953) 5 DLR (FC) 143 (152), (1953) 5 DLR (FC) 143 (15

Subject: Constitution of Pakistan

Delivery Date: 2018-09-18

BAIL

 

S.496 : Sections 496 and 497 are not intended to control section 427. Section 426 which refers to the grant of bail to a convicted person applies with equal force to the case of an acquitted person.

 

Section 498 has no reference to acquitted persons, it is merely ancillary to sections 497. Khalid Saiga! Vs. State (1962) 14 DLR (SC) 321.

 

—Bail, conception of— The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of surcttes, who undertake to produce hira^ in Court whenever required to do so. Crown Vs.Khushi Md. (1953) 5 DLR (FC) 143 (150).

 

Sections 496-498 and s. 426: Provisions of sections 426 and 427 are invokable regarding bail matter only in case of conviction or acquittal after trial and to persons who have been convicted or acquitted after trial, Sections 496-498 have nq application. Solicitor Vs. Syed Sanwar Ali (1975) 27 DLR (Appl. Divn) 16.

—No prior assumption legally sustainable that merely because a charge of murder has been made, bail prayer must be refused, nor can a 'rule of practice' be invoked for such refusal—Discretion to be exercised by Court must be judicial discretion.

 

Where a Court is called upon to exercise its judicial discretion it will not be discharging its functions properly if it were to proceed upon any prior assumption that in all cases where art offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised.

 

To act upon a rule of practice may, therefore, well constitute an arbitrary exercise of a discretionary power, for the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. Khalid Saigal Vs. State, (1962) 14 DLR (SC) 321.

 

—Provisions of sec. 496 are not applicable in the case of a certificate-debtor who is arrested under sec. 26 of the Public Demands Recovery Act, and therefore, proceedings under sec. 514 of the Code cannot be drawn up against his surely. Kafiluddin Vs. Crown, (1956) 8 DLR 184.

 

—Bails and bonds—The. bonds and bail bonds comtemplated by the Cr.P.C. are documents intended to secure the appearance of persons who have been arrested, and whose presence is required by Court; the terms of the documents make it clear that they can only be executed when the person to be bailed is under arrest and in custody. Md. Abbas Vs. Crown 2 PCR 28.

 

— Bail, prayer for bail, when no warrant issued for arrest—When a person appears before the High Court merely to present an application for bail, without any warrant for his arrest having been issued, he is not appearing in respect of any offence of which the High Court is taking cognizance at the time and his appearance before the Court cannot be regarded as a surrender to custody. Crown Vs. Khushi Md. (1953) 5 DLR (FC) 143 (149).

 

—Ill-defined fear that the accused would tamper with prosecution evidence cannot hamper grant of bail. Md. Hasan Vs. Crown 2 PCR 89.

 

—Bail—First Judge of the High Court refused bail.—Later on a fresh application for bail was moved before another Judge of the same High Court who grants bail—Extreme impropriety that results from such a course. Chowdhury Muhammad Khan Vs. Sanaullah, (1973) 25 DLR (SC) 45.

 

—Mass of documentary evidence produced by prosecution, which only the accused could explain and advise his counsel—valid ground for bail. Md. Hasan Vs. Crown 2 PCR 89.

 

—-Arrest only for harassment and humiliation—It may be said that it is desirable that the High Court should possess a power to enlarge a person on bail if it is the object of a police-officer or other executive authorities to arrest him merely for purposes of harassment or humiliation. The remedy, however, lies with the Legislature and the Courts are not in a position lo give any relief to such a person if there is no \ provision in law entitling them to admit him to bail. Crown Vs. Khushi Md. (1953) 5 DLR (FC) 143 (153).

—Granting of bail in non-bailable offences—Magistrate must record reasons in support of his order. Ghulam Qasim Vs. Langra, (1958) 10 DLR (WP) 3.

 

—When not under arrest—A person cannot be admitted to bail against whom a report has been lodged at the police-station but who has not been placed in custody or under any other form of restraint or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under sec. 498, if he appears in Court and surrenders himself. Crown Vs. Khushi Md. (1953) 5 DLR (FC) 143 (152).

 

—Expression 'admit to bail' and 'release on bail1 have been used in the Code synonymously and the | expression 'admit to bail' has not been confined to the High Courts or Courts of Session but has been used also in respect of police-officers and Courts subordinate to the Courts of Sessions. Crown Vs, Khushi Md. (1953) 5 DLR (FC) 143 (157).

 

—Granting of bail—When an accused is first brought before a Court, the evidence of a police-officer that he is in possession of reliable information may be sufficient to remand the accused to custody but for a further remand or for the cancellation of bail already granted some direct evidence of accused's guilt is necessary. A. Kader Vs. Crown, (1955) 7 DLR 637.

 

—Where there is not only no such direct evidence but also no evidence whatsoever from any police-officer that he is in possession of any reliable information in dictating the guilt of the accused, the latter is entitled to be released on bail. A. Kader Vs. Crown, (1955) 7 DLR 637.

 

—Cancellation—Wh»n a Magistrate said that he cancelled bail in view of his policy in regard to bail, the High Court condemned this practice. A. Kader Vs. Crown, (1955) 7 DLR 637.

 

—Sub-divisional Officer cannot cancel a bail granted by another Magistrate. A. Kader Vs. Crown (1955) 7-DLR 637.

 

—Sub-divisional Magistrate is not a revising authority over a 1st Class Magistrate. A. Kader Vs. Crown, (1955) 7 DLR 637.

 

—Magistrate who granted the bail can alone I cancel it. A. Kader Vs. Crown, (1955) 7DLR 637.

 

—Public Prosecutor before granting lail if entitled to notice—There is no mandatory provision of law that the Court, while considering a bail application, is obliged to give opportunity to the Public Prosecutor to appear on behalf of the Crown to oppose the bail, but it is an accepted principle that in applications for bail, particularly those of an important nature in which Hie Crown is prosecuting, an officer representing the Crown should be given an opportunity to attend. Crown Vs. A.Huq, (1954) 6 DLR (WPC) 198.

 

— Committing   Magistrate's   discretion

-A committing Magistrate has full discretion to jrant bail to an accused person after his commitment lo the Court of Sessions. Crown,Vs. A. Sobhan (1952) 4 DLR 33.

 

—The section requires that there should appear reasonable grounds to the Court for believing that the person brought before it "has been guilty". This is not the same as believing that "he has not been guilty". The law should be read as it is and no attempt should be made either to add to or take away therefrom any words, for, this may well alter its entire sense. A. Kader Vs. Crown, (1955) 7 DLR 637.

 

Bail—reasonable grounds—To determine whether the grounds are reasonable or not the Court will inevitably have to see whether there are any materials before it to induce the belief that the accused has been guilty. The mere fact that a person has been arrested cannot be sufficient to induce such a belief,/!. Kader Vs. Crown, (1955)7DLR 637.

 

Attaching condition to bail is not permitted by law, it was contended from the Bar. Iqbal alias Salim Vs. The Stale, (1988) 40 DLR (AD) 279.

 

Purpose of granting bail may be defeated if payment of the fine is made a condition. Iqbal alias Salim Vs. The State, (1988) 40 DLR (AD) 279.

 

Appellant's name not mentioned in the F.I.R. nor any material could be gathered against him by Police—Bail was not allowed on this contention by High Court Division but appeal was allowed by Appellate Division. S.K. Kumar Vs. The State, (1988) 40 DLR (AD) 290.

 

—Appellants' bail prayer on the ground of being a B.A. Examinee. The appellant then alone prayed for bail by an independent application making out a special case for bail. Nurul Islam Vs. Stale, (1988) 40 DLR (AD) 244.

—Attaching condition to bail is not permitted by law, it was contended from the Bar. Purpose of granting bail may be defeated if payment of the fine is made a condition. Md. Iqbal alias Salim Vs. State, (1988) 40 DLR (AD) 279.

 

—Cancellation of bail when improperAn application made before an Additional Sessions Judge for cancellation of bail granted by the committing Magistrate in a case under sec. 302, P.P.C., was rejected and a similar application was after a few days made before the Sessions Judge who, accepting the same, cancelled the bail without mentioning reasons, and sent the accused to custody.

 

HeW : The Sessions Judge's order without giving the reasons for the cancellation of the bail and without mentioning in his order that he had taken into consideration the orders of the committing Magistrate as well as those of the Additional Sessions Judge was grossly irregular, if not illegal. (1955) 7 PLD (Pesh) 50.

 

'—Conditions of bond—Whenever a Court requires an accused person to furnish a bail bond, the terms of the bail should normally be for attendance and that other conditions should not be imposed. This would be more so in a case where the accused is called upon to be of good behaviour, since there is a separate and distinct provision of law for this purpose. (1952) 4 PLD (Bal) 25,

 

—Non-bailable offence—bail when granted—Offence charged non-bailable—Defence satisfying the Court that there were no reasonable grounds for believing that the accused committed a non-bailable offence — Court has no option but to grant bail. (1951) 3 PLD (BJ) 29.

 

—Accused kept in lock-up after expiry of fifteen days without express authority of Court—entitled to be released on bail. (7957; 3 PLD (Pesh) 37.

 

—Accused remanded to police custody—Alleged offence non-bailable—Bail be accepted on -very strong grounds. (7957J 3 PLD (Pesh) 37.

 

—Bail-—certificate debtor—Provisions of section 496 are not applicable in the case of a certificate-debtor who is arrested under section 29 of the Public Demands Recovery Act and therefore proceedings under section 514 of the Code cannot be drawn up against his surety. Kafiluddin Vs. Crown, (1956)8DLR184.

 

Ss. 496 & 497—Power of High Court to grant hail under section 498 in non-bailable cases is wider than that conferred by sections 496 and 497 Cr.P.Code—Not confined to statutory limitation laid down in sections 496 and 497—The fact that offence charged with is^ punishable with transportation for life is not sufficient to refuse bail u/s 498. Sardar Ataullah Khan Vs. State, (1963) IS DLR(WP)41.

 

—Applicable to Courts as well—The two sections of 496 and 497, contain the law which has to be applied by all Courts, including the High Court and the Court of Sessions, which have to pass any orders relating to the grant or cancellation of bail to any accused (not convicted) persons, and do not apply only to the investigating police and the Court holding the enquiry or trial. Karim Baksh Vs. Crown (1955) 7DLR (WPC) 9.

 

—Bail before and during trial. Sections 496 and 497 provide for bail both before and during the trial. Md. Bashir Vs. Crown, 2 PCR 183.

 

—Admission  to  bail  immediately—The conflict of views between the Full Bench decision of the Lahore High Court in Hcdayetullah Khan's case (P.L.D. 1949 Lah. 21) and the Full Bench decision of the Sind Chief Court in Md. Abbas's case (2 M. Cr. Reporter Page 28) on the question of grant of bail before arrest—the former holding that bail before arrest can be granted'in certain circumstances (e.g. where it would appear that the order refusing bail would be made not for furthering the ends of justice but from some ulterior motive), the latter dissenting from that view and holding that no one can be admitted to bail unless he is in custody, can be avoided and the liberty of the subject be , afeguarded by directing, in appropriate circumstances, that the accused as soon as he is arrested shall be immediately admitted to bail on furnishitig security to the satisfaction of the arresting authority. Md. Bashir Vs. Crown 2 PCR 183.

 

—Allegations against accused not stated in police charge-sheet before Magistrate but claimed to have been mentioned in police diaries—Police diaries may be ignored for purpose of bail. 8 PID (Sind) 262.

Sections 496, 514 and s. 29 of P.D.R. Act.

 

—Provisions of section 496 are not applicable in the case of a certificate-debtor who is arrested under section 29 of the Public Demands Recovery Act and therefore, proceeding under section 514 of the Code cannot be drawn up against his surety. Kafiluddin Ahmed Vs. Crown (1956) 8 DLR 184.

 

—Sees. 496 and 497 : Bail can be granted to an accused person under sees. 496 and 497 of the Code, at any stage prior to conviction being recorded. The expression "admitted to bail" and "released on bail" have the same meaning. A man entertaining apprehension of arrest but not yet been taken into custody may be released, in appropriate circumstances, on bail. On principle, there is no difference between the case of a person against whom a warrant of arrest has been issued and one whose arrest, at the hands of the police, without a warrant, is imminent. . The word "appear" applies to a person summoned to appear before Court as also when he voluntarily appears in Court. No bail, even in case of imminent police arrest, unless the person appears in Court and also in such cases bail can be granted only when refusal of.it would cause irreparable harm to him. Sadiq All Vs. Slate, (1966) 18 DLR (SC) 393.

 

—One of the co-accused who is alleged to have fired the fatal gun shot has already been granted bail by the Sessions Judge and that another co-accused has been granted bail by the High Court Division. We find no materials for which the case of the appellants might be discriminated. Although granting of bail is a matter of discretion of the Court concerned but having considered the facts and circumstances of the case we are of opinion that the High Court Division has not exercised its discretion judicially in rejecting the appellant's prayer for bail. Abdul Gafur Sarder Vs. The State, (1983) 35 DLR W279'.

S.497—Bail in non-bailable offence—Court :an grant bail only in absence of prima facie case igainst the accused' except in case of person nentioned in the proviso. Magistrate in committal proceedings if frames charge of a non-bailable offence is not competent to enlarge accused on bail. Muhammad Ishaq Vs. Farman Shah, (1964) 16 DLR (WP) 72

 

—Magistrate's   power   to   grant   bail—

The High Court in its order merely said that the question of bail was left to be decided by the trial Magistrate after some evidence was recorded. This had been interpreted by the Sessions Judge^ that bail could not be granted without recording some evidence by the Magistrate.

 

This view is plainly fallacious, for the Magistrate derived his power of granting bail from section 497, and no restraint upon that power can be recognised except such as appears in the section itself. For the purpose of granting bail it is not a necessary condition that any evidence should have been recorded in the case.

 

When the complainant was attempting to frustrate the power of the magistrate to grant bail, the duty of the Court clearly was to take such steps as were necessary to ensure that the complainant should not succeed in his tactics. Abdul Hye Khan Vs. State, (1958) 10 DLR (SC) 179.

—High Court not restricted by the provisions of sec. 497—The view that the High Court or Court of Session, acting under sec, 498 in non-bailable cases, are restricted to the grounds of release set out in section-497 is incorrect. Karim BakshVs. Crown, (1955) 7 DLR (WPC) 9.

 

—The powers conferred by sec. 498 on the High Court or on a Court of Session are not controlled by limitations contained in sec. 497 and may in certain cases be greater than those which could properly be exercised by the police or a subordinate Court. Md. Abbas Vs. Crown, 2 PCR 28.

 

There is nothing in sees. 496 and 497 to show that these sections were intended to apply only to the investigating police and the Courts holding enquiry or trial. On the contrary, the language used, in my opinion, makes it clear that they Were intended to contain the entire law relating to the granting and cancelling of bail to accused (not convicted) persons, which had to be applied by all the Courts alike. Md. Abbas Vs. Crown, 2 PCR 28.

 

—Accused's right to be enlarged on bail after his commitment to Sessions Court when bail was refused by the Committing Magistrate. It is, however, open to an accused person to pray for his bail even after his commitment, by showing that his commitment has not been made to rest on any reasonable grounds, and that the Committing Magistrate, instead of applying his mind to the case to reach a conclusion that a prima facie case has been made out, has merely transmitted the allegations of the prosecution, with no tangible evidence to support them, for trial by the Sessions Court. In such an event, apart from applying for his bail, the accused can ask for the quashmcnt of such a commitment. In a situation like this, in order to justify the continued detention of the accused person, it would be for the higher Court to sec whether the commitment order does disclose that satisfaction of mind on the part of the Committing Magistrate, which is necessary for committing an accused person for trial on the basis that a prima facie case for an offence punishable with death or transportation has been made out against him. Nisar Ahmad Vs. The Stale, (1971) 23 DLR (SC) 41.

 

—Undue delay in holding the trial, due to the prosecution's procrastination will be a valid ground of granting bail and question of granting bail in such a case need be considered with care. Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order to bring it to close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permilted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits.

 

Leisurely steps taken in filing the challan, lardy and halting production of evidence or seeking of unnecessary adjournment except those necessitated by force of circumstances must be strongly deprecated. Riasat AH Vs. Ghulam Muhammad, (1968) 20 DLR (SC) 339.

 

— The words "if there appears reasonable grounds for believing." The words which require consideration arc: "if there appear reasonable grounds for believing." An erroneous impression seems to have crept in lately that in dealing with a bail matter the court is to form an opinion about the merits of the prosecution case as a whole.

 

The High Court is not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty; otherwise, any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started. The learned High Court Judge was not competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the appellants fell under section 302 or 325 PPC which presumably was the basis of the order granting bail to the appellants. Muhammad Aslam Vs. State, (1967) 19 DLR (SC) 445.

 

—High Court granted bail on one of several grounds—Supreme Court overruled granting bail on that ground—Accused entitled to move High Court for bail on other grounds. If the accused-petitioner is advised that grounds exist for his bail other than the one on which bail was allowed to him by the High Court and which has not provisionally found favour with the Supreme Court, he may move a fresh application in the High Court urging those grounds. Riasat AH Vs. Ghulam Muhammad, (1968) 20 DLR (SC) 340.

 

—Mere order of commitment is not enough per se to justify remand of accused to custody— Cancellation of bail- may not be necessary notwithstanding the order of commitment. Mohammad Nawaz Vs. Khan Mohammad, (1970) 22 DLR (WP) 92.

 

—Sees. 497 and 496 : The word 'appeal'— Does not mean voluntary appearance but means appearance in answer to a process of Court.

 

—The word "appears" in sections 496 and 497 obviously contemplate appearance in answer to a process issued by a Court. The view expressed in Sadiq Ali's case in regard to the word "appears" has to be modified to the extent that it does not mean voluntary appearance.

 

Under sections 496 and 497, the Court can.bail out a person only if he has been placed under actual custody or appears in answer to process issued or is brought before the Court by the police or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Muhammad Ayub Vs. Muhammad Mub, (1967) 19 DLR (SC) 39.

 

Ss. 497 and 498 : Bail before arrest.

Document allegedly forged ex facie does not show any tampering nor indicate any forgery—There is no other material on record to support the ion.

 

Held: Accused has made a prima facie case to be entitled to bail before arrest. Shabeehul Hassan Vs. The State, (1970) 22 DLR (WP) 216.

 

—Cancellation of bail (granted earlier) does not necessarily mean that the accused was put into police custody and hence no action under section 224 PP.Code against him is lawful.

 

Held : The cancellation of the bail by the Sessions Judge did not in the circumstances of the present case, entail the consequence that he had to be ordered to be given into the police custody without there being a request in that behalf by the police itself. Sadiq Ali Vs. State, (1966) 18 DLR (SC) 393.

 

—Bail in murder cases—Difficulties attending grant of bail.Bail in murder cases—Difficulties in deciding bail matters in murder cases are :

 

(a) Courts are to take decisions immediately after the complaint is lodged when the case is still pending investigation and rather meagre and insufficient material is available in the legal parlance;

(b) possibility or even probability or misstatcmcnts, distortions and exaggeration of facts made by the complainants;

(c) scarcity of scrupulous police officers;

 (d) lamentable lack of public spiritedness in our people and

(e) some police officers may not hesitate to fabricate evidence in order to fill in the lucuna in the prosecution case once they are convinced of the guilt of the accused— Courts duty is to follow those rulings which have the closest proximity to, if not complete identity with, the facts and circumstances of the case so that the 'ratio decidendi' of the precedent authorities can be attracted with full force. Muhammad Nawaz Vs. Khan Muhammad, (1970) 22 DLR (WP) 91.

 

— Cancellation of bail in murder case :

Finding given by police officer is very much relevant in deciding bail matter in murder cases— Concurrent findings given by two police officers one being a Gazetted officer, not only relevant but prima facie entitled to considerable value. Complainant's application for cancellation of bail of the accused was rejected by Enquiry Magistrate and the Sessions Judge on sole consideration of concurrent finding of two Investigating Officers—When contended that a person once summoned as accused in a murder case cannot be released on bail it was—

 

Held : Enquiry Court is placed under statutory obligation to release accused on bai) where the case needs further enquiry under section 497(2) Cr.P.C. Muhammad Zawaz Vs. Khan Muhammad, (1970) 22 DLR(WP)91.

 

— Read with rule 206 of the Defence of Pakistan Rules—Jurisdiction of ordinary criminal court including its jurisdiction to grant bail is barred when a case is ordered to be tried by the Central Government by Special Tribunal. The State Vs. liabib Jalib, (1968) 20 DLR (WP) 1.

 

—Offence punishable with death or transportation—In case of bail application, Court is required to be satisfied before rejecting the application that a prima fade case exists as to the involvement of the accused in the offence. Abdus Sukur Vs. The Stale, (1973) 25 DLR 119.

 

—Bail—Bail to an accused person committed for trial to the Sessions Court on a charge of murder—When can be granted or refused. In the matter of bail under section 497 Cr.P.C. for offences punishable with death or transportation for life, the Courts are only concerned in examining whether reasonable grounds do or do not exist to connect an accused person with that offence. The commitment of an accused person for trial on a murder charge which would disclose a prima facie case against him, would be a good ground for refusing bail to him during the pendencey of the trial. The position, however, will be different if the commitment order itself is found to be wholly unsatisfactory, which might call for its quashment and incidentally also furnish a reason for bailing out the accused, who has thus been committed for trial without any jurisdiction. Ghulam Rasool Vs. Ghulam Muhammad, (1971) 23 DLR (SC) 36.

 

—Person actually" sick or infirm may be released on bail even in case of charges involving death or lesser sentence. Abdul Aziz Vs. Bashir Ahmad, (1966) 18 DLR (SC) 390.

 

—Sessions Judge on a question whether bail should be granted to an accused person charged with an offence carrying death sentence, should read the record to form his opinion, but should not express any opinion jn writing, as that will interfere with the function of the committing Court in the matter •of commitment. Ashiq All Vs. State, (1966) 18 DLR (WP} 117.

 

—Bail—Application for bail moved just after commitment of the accused to Sessions Court-Consideration which should weigh in dealing with such application.

It is not possible to determine this point one way or the other without a full appraisal of the evidence that has been led or may be led, and the courts should not be invited to do that, as it would lead to pre-judging material issue in the case while deciding the bail application. Such an attempt before the higher Courts, in particular, is wholly undesirable, as an expression of opinion by them on the merits of any point of substance in the case is bound to prejudice its ultimate decision. Nisar Ahmad Vs. The State, (1971) 23 DLR (SC) 41.

 

—Bail—grant or refusal of bail in non-bailable cases is a matter of discretion with the primary court—The mode of using such discretion for offence punishable with death or transportation for life, explained.

This discretion has to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberty of the peoples who are accused of criminal offences. For offences punishable with death or transportation, this discretion is subject to the limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to ascertain whether reasonable grounds exist or do not exist, the courts do not have to probe into the merits of the case; they have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left unrebultcd, may lead to the inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions, nor with tested and proved evidence which the law requires for a person's conviction for an offence.

 

The principle enunciated in Md. Shafiq's case of the Supreme Court does not foreclose the question of grant of bail to an accused person after his commitment for trial under sec.210 Gr.P.C. Under section 220 of the Code, cdmmitment of an accused person, during or until the trial, is subject to the provisions of bail contained in the Code which means that where, even at the time of commitment, it appears that any of the provisions of section 497 are attracted to allow bail to the accused, he need not be committed in custody to stand his trial. One patent instance, for example, would be where an accused may be found to be entitled to the benefit of proviso to sub-section (1) of section 497 on the ground of tenderness of age, womanhood, sickness or infirmity. Another would be where in terms of sub-section (2) of sec. 497, the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but commits him nonetheless for trial, because there are sufficient grounds for further inquiry into his case. Pending such a further inquiry into his guilt, the accused shall be released on bail. Nisar Ahmad Vs. State, (1971) 23 DLR (SC) 41.

 

—When a Magistrate will or will not refuse bail to an accused person before committing him to trial.

Under section 210 of the Code, a Magistrate, after taking evidence and examining the accused, has to be satisfied that there are sufficient grounds for committing the accused for trial. To arrive at this state of mind, ordinarily he has, of. necessity, to go beyond the state of mere belief as to the existence of reasonable grounds and has to be satisfied that a prima fade case has been made out against the accused, and when prima facie case has been made out, it cannot be said that in spite of it, there are no reasonable grounds for believing the accused to be guilty. Nisar Ahmad Vs. The State, (1971) 23 DLR (SQ41.                .                '

—Bail in non-bailable offence granted to accused by superior Court before commitment—Committal Court has no power to cancel bail under section 220— But bail granted by superior Court during committal proceeding would be treated withdrawn   with   the   commitment   of   the accused.

If the bail granted to accused is only a temporary one and ordered to subsist only till further evidence is brought on record or the stage of commitment of the.accused is reached then the effect of such order would be only temporary one and the order would ipso facto stand withdrawn at the time of commitment of the accused. The power to grant bail to accused or remand him to custody would then be deemed to have been vested in the committal Court under section 220 of the Code. Shaukat Alt Vs. The State, (1967) 19 DLR (WP) 39.

—Bail to a person accused of an offence punishable with death, can however be granted where the Court.is of opinion that reasonable grounds do not exist that such offence has been committed.

 

It would be incorrect to say that a person who' is accused of an offence punishable with death or transportation for life cannot be admitted to bail except on ground of age, sex or infirmity, as section 497 Cr.P.Code envisages; that bail shall be refused if there appears reasonable grounds for believing that the person accused has been guilty of an offence punishable with death or transportation for life. It follows that if the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed. The determination whether bail will be allowed to a person accused of an offence punishable with death or transportation for life will thus depend on the facts of each case. Nadara Vs. Jamait Khan, (1968) 20 DLR (SC) 245.

 

—Circumstances which the Courts take into consideration for forming an opinion in relation to bail under 'section 497 are related to the earlier stage.

The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on the accusation levelled against him, the report under section 173 Cr.P.C., and the evidence which the prosecution proposes to examine, the plea of defence, if any, raised during the investigation Or any other special circumstances appearing in favour of the accused or against the prosecution. After the material witnesses in the case have been examined, the Sessions Judge or the High Court if satisfied that reasonable grounds do not appear for believing that the accused has been guilty of an offence punishable with death or transportation for life may grant bail to him.

 

The statements made to the Enquiry Magistrate are for the purposes of determining only whether the person accused of an offence punishable with death or transportation for life should be committed for trial and declaring with what offence the accused is charged. Nadara Vs. Jamait Khan, (1968) 20 DLR (SC) 246.

 

—Abetment of murder by overt act such as, crying lalkara—Bail refused.

There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P.P.C. Shouting of a lalkara may, in such circumstances, have effect as a further overt act of an abetment. Chiragh Din Vs. State, (1967) 19 DLR (SC)357.

 

—Bail before arrest granted by the trial Court—Bailed men were suspected as persons privy to the murder—That is not a circumstance to whom the words "if there appear reasonable.....for life" apply—Order of bail before arrest, valid.

Bail may be cancelled when evidence discloses the accused are guilty of an offence punishable with death. High Court's order confirming the order of bail will not stand in the way of the accused taken into custody when there is evidence about his guilt. No ground can be made out at Jhe present stage for cancellation of the bail, by this (Supreme Court) Court. Until the situation arises that there is reasonable ground for thinking that the respondents are guilty of the offence shown in the Challan, which is punishable with death or transportation for life, there would be no violation of law in allowing them to remain on bail. It was urged that the result of the High Court's Order confirming bail before arrest may be that they will remain on bail throughout the commitment proceedings and the trial as well.

 

Court cannot allow any person of whose case it is seized of to remain on bail if there be reasonable grounds for thinking that he has been guilty of an offence punishable  with death or transportation for life, except on grounds of sickness or infirmity, or of age, i.e. extreme youth or extreme old age or of sex. The committing Magistrate and if a follows, the Sessions Court, will in due course be in a position to determine the question of bail on this basis and the High Court's order, directing bail before arrest, will then not stand in the way. Abdur Rahman Vs. Fazal Qadim Khan, (1967) 19 DLR (SC) 276.

—Evidence recorded during the inquiry may be the basis for formation of opinion as regards the offence.

The possibility that the evidence recorded during the inquiry may persuade the Sessions Judge or ihc High Court to believe that reasonable grounds do not appear for believing that the person accused has been guilty cannot be altogether excluded. Nadara Vs. Jamah Khan, (1968) 20 DLR (SC) 246.

 

—Evidence led before the Inquiry Magistrate may be used to find out whether reasonable grounds exist or not. At the same time the person committed for trial may in an exceptional case be allowed bail if the evidence produced before the Inquiry Magistrate prima facie makes out that reasonable grounds do not appear for believing that he had been guilty. Nadara Vs. Jamait Khan, (1968) 20 DLR (SC) 246.

 

—Read .with rule 206 of the Defence of Pakistan Rules—Jurisdiction of ordinary criminal Court including its jurisdiction to grant bail is barred when a case is ordered to be tried by the Central Government by Special Tribunal. The Stale Vs. llabib Jalih, (1968) 20 DLR (WP) 1.

 

—Question of granting bail cannot be decided by reference to matters riot envisaged in the CiP.Code,. Mizanur Rahman Gazi Vs. State, (1977) 29 DLR 167.

 

—CrP.Code which provides that if there are sufficient grounds for further enquiry into his guilt, the accused, pending such enquiry, be released on bail. Mizanur Rahman Gazi Vs. State, (1977) 29 DLR167.

Circumstances which permit "release of-an accused on bail, even though charged with an offence of murder.

 

In this case the names of the accused have not been mentioned in the F.I.R. Though the names of the petitioners have been mentioned in column 2 of the charge-sheet but it has not been, stated by the. I.O. as to what part they played in the alleged occurrence. The report submitted by the officer-in-charge of the Kotwali police station is vague and does not mention when and how the accused persons threatened the witnesses. Ordinarily in a case under section 302 bail should not be granted. Ends of justice in the present case demand that the accused petitioners should be granted bail. Harun Howlader Vs. The Stale (1984) 16 DLR 21.

 

—Section 497 not applicable to the High Court—seriousness of the offence not a ground to refuse bail.

The rule of general law laid down in section 497 Cr.P.C. is not binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case, the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498 Cr.P.Code. Syed Gulam Alt Shah Vs. State, (1964) 16 DLR (WP) 12.

 

Ss. 497 & 498, Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. Liaqat Sharif Vs. State, (1988) 40 DLR 506.

 

—S.497(I)   : Bail application in a case in which offence alleged is punishable with death or transportation for life—Court concerned should see if there is some tangible evidence as regards the guilt. of the person with the offence charged. This assessment is not an assessment of the offence as in a trial, but as has been repeatedly pointed out, the Court concerned is expected even at this stage to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which if left unrebuttcd, may lead to the inference of guilt.

 

If the High Court had taken the trouble of scrutinizing with care the decisions of the Supreme Court in the cases of Khalid Saigol Vs. The State (1962) 14 DLR FC 321-PLD 1962, SC 495), Nadara Vs. Jamiat Khan (1968) 20 DLR SC 295-PLD 1968 SC 310) and Md. Shafiq Vs. Md. Hanif and another (1970) (S.C.M-R)143, it would have noticed that principles followed by the Sessions Judge were those laid down in these cases. Abdul Motaleb Vs. Slate (1975) 27 DLR 665.

 

— Gravity of the offence charged is not by itself sufficient to refuse bail—reasonable grounds for believing that the person seeking bail is guilty of such offence, must exist. Acting under section 497(1), reasonable grounds will have to be ascertained upon the materials furnished by the investigating agency. The question which arises for consideration is what should be the principles which should govern the grant of bail to a respondent in an appeal against acquittal. Under this section in the case of offence punishable with death or transportation for life the heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence.

 

Sub-section (I) of the said section evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists. Khalid Saigol; Vs. State (1962) 14 (SC) 321 (1962) PLD (SC) 495.

 

—(2) : Sub-section (2) comes into application when investigation or trial has already commenced ,and when the accused is in a position to satisfy court 'that no reasonable grounds to refuse bail exists; which when done the Court must grant bail. Acquittal order is a reasonable ground for bail.

 

Sub-section (2) of the said section, on the other hand, comes into application where the investigation, inquiry or trial has already commenced and in the course thereof the accused has come to be in a positibn to satisfy the Court that there are no reasonable ground for believing that he has committed the offence alleged and if he so succeeds in satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined thereunder that the Court shall enlarge him on bail even if it is of the view that there still are sufficient grounds for further inquiry into his guilt.

 

Acquittal not only strengthens the presumption of innocence but also negatives the existence of any reasonable ground for believing the accused to be guilty. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321 : (1962) PLD (SC) 495.

 

—8.497(2) : Refusal to grant bail by Sessions Judge (the appellate authority)—Magistrate can in spite of such refusal on a subsequent occasion, in proper circumstance, grant bail. Taker Ali Khan Vs. The State (1975) 27 DLR 32.

 

—A Magistrate when he grants bail to the accused or refuses to grant it, he derives his power to do so from the provisions of section 497(2) CrP.C. Taker Ali Khan Vs. The State (1975) 27 DLR 32.

 

—497(5)   "Under  this  section"  of sec,

497(5)—By the words "under this section" in clause (5) of s.497, it was intended to emphasise "and not under sec. 496". It was obviously necessary to make it clear, in the only provision which was enacted relating to the cancellation of bail in the Chapter, that bail could not be cancelled in the case of a person accused of a bailable offence. Karim Baksh Vs. Crown (1955) 7 DLR (WPC) 9.

—Any order regarding bail by such a Court is therefore necessarily an order granting a release "under this section" within the meaning of these words in clause (5) of section 497. Karim Baksh Vs. Crown (1955) 7 DLR (WPC) 9.

 

—When the accused has been released on bail not under sec. 497, but under sec. 498, the High Court could not interfere under sec. 497(5), but the High Court has adequate jurisdiction under sec. 561-A of the Code to review the order granting bail. Crown Vs. A . Huq (1954) 6 DLR (WPC) 198.

 

—The High Court or the Court of Sessions v hen it takes action to grant bail does so under section 496 or 497, read with section 498 of the Cr.P.C. and both these Courts have no less power to cancel bail granted by them in a case pending before a Magistrate than the Magistrate himself possesses, for the simple reason that all the Courts derive power from the same statutory provison, namely, sub-section (5) of section 497 of the Code. Gushtasab Khan Vs. Crown (1956) 8 DLR (FC) 118.

 

—Same   consideration   which  have to ''• be weighed  in granting bail under section 497,  would  also apply  in  case of section 498.

 

The policy of the law, in respect of bail to persons, accused of non-bailable offences, is laid down in section 497, and the same policy should be kept in view, while considering the question of bail under section 498. In this respect, therefore, section 498 of the Code seems to be "ancillary or subsidiary" to sections 496 and 497 of the Code, in the words of the Privy Council. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38

 

S. 498—is ancillary or subsidiary to sections 496 and 497 and does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Sessions. Crown Vs. Khushi Md. (1953) 5 DLR (PC) 143.

 

  Bail application by persons not yet under arrest—Three persons made an application to the High Court for bail under sec. 498. They were not arrested and not in custody, but they set out grounds stating that there were reasons to apprehend that they would be arrested by the police and kept in custody without being allowed to be released on bail.

 

Held : It is incorrect to speak of admitlitig any person to bail unless and until he is in custody. The word "bail" is never used in the Code except in connection with the release of a person formally or legally under arrest and in custody. Md. Abbas Vs. Crown 2 PCR 28.

 

—High Court and Session Court's power to grant and cancel bail—A Court of Session granting bail to an accused person in a case pending before a Magistrate is also competent to cancel the bail later. Gushtasab Khan Vs. Crown {1956) 8 DLR (FC) 118.

 

Powers   under   section   498   are   of revisional   nature—The powers of the High Court under sec. 498 are not merely revisional but are concurrent with those of the Court of first instance. Crown Vs. Khushi Md. (1953) 5 DLR (fC) 143 (152 1-h. col).

 

—The powers conferred by sec. 498, exercisable on an application made to the High Court or to a Court of Session, are clearly of a revisional character. Md. Abbas Vs. Crown 2 PCR 28.

 

—Such a revisional power cannot be exercised before the police or a subordinate Court had passed any orders which could be revised, as it is contrary to every judicial principle for a higher judicial authority to interfere, by giving directions in anticipation, with the exercise of discretion legally conferred upon 3 subordinate authority. Md. Abbas

Vs. Crown 2 PCR 28.

 

—Bail by anticipation—In a proper case, the High Court has power under sec. 498 to make an order that a person who is suspected of an offence for which he may be arrested by a police-officer or a Court shall be admitted to bail. 1 PLD (Lah) 21.

 

—"any    case",    "any    person" —The expressions "any case" and 'any person' occurring in sec- 498 refer only to persons coming under sees. 496 and 497. Crown Vs. Khushi Md. (1953) 5 DLR (FC) 143 (158 rt-h.col.)

 

—The word "any person" in sec. 498 cannot include any person who was not under arrest and in custody. Md. Abbas Vs. Crown 2 PCR 28.

 

—General principle regarding refusal of bail—The powers to release accused persons on bail under sec. 498 are virtually unlimited and the question is entirely one of discretion bearing in mind the general principle that in refusing bail it is generally necessary to see whether there arc reasonable grounds for believing that the accused has committed some offence and secondly whether he Sf likely to tamper with evidence during his enlargement on bail. Crown Vs. A. Huq (1954) 6 DLR (WPC) 198.

 

—It would be inadvisable for a Court to enlarge a person on a bail if there were prima facie indications that he was likely to be found guilty of some serious offence. Equally, if the Court was satisfied that he was likely to tamper with evidence to be led on behalf of the prosecution, to admit him to bail would also be inadvisable. Crown Vs. A. Hug (1954) 6 DLR (WPC) 198.

 

—Granting of—Whenever bail is granted by the Sessions Judge under sec. 498, he cannot countermand his own order, and the High Court, as a Court of revision, alone shall have the power to do it. Similarly, where the bail was granted by High Court, it has no power to cancel it under sec. 498, and resort must be had to its inherent powers under sec. 561 A, Cr.P.C. (1950) 2 PLD (Lah) 280.

 

—Addl. Sessions  Judge  and  sec.498— An Additional Sessions Judge does not become a Court of Session for the purposes of section 498 of the Code of Criminal Procedure unless the notification appointing him as Additional contains a direction to that effect or until the Sessions Judge himself by a general or special order assigns any application or applications under that section to him. Mupal Vs. Ghulam (1953) 5 DLR (WPC) 86..

 

—The power of a Sessions Judge under section 498, Cr.P.C., is controlled by the provision of section 497, Cr.P.C. When the Sessions Judge had not stated his reasons for admitting to bail persons accused of murder under sec. 304, P.P.C., bail was cancelled by the High Court. (1950) 2 PLD (BJ) 44'.

 

—Person seeking bail must surrender and appear before Court when the application for bail is being heard.

. It is an essential condition of the administration of justice, in a case affecting an individual or individuals that the persons concerned should submit to the due process of justice and, as such when the appellant himself" was "engaged in setting that judicial order at naught", High Court would have been entirely justified in refusing to entertain the bail application until the appellant had submitted to the due process of justice. Khalid Saigol Vs. State, (1962) 14 DLR (SC) 321.

—Bail—Supreme Court does not interfere in a case of bail, unless the circumstances are of an exceptional character so that refusal might entail risk of a grave illegality, or clear abuse of process, or some gross act of injustice, e.g. victimization. Ghulam Haider Vs. Karim Bux (1963) 15 DLR (SC) 2.

 

—Since an offence u/s. 326 P.P.C. K punishable with transportation for life, the accused could not claim to remain on bail, as of right. Ghulam Haider Vs. Karim Bux (1963) 15 DLR fSCJ 2.

 

—Power of High Court to grant bail under section 498 in non-bailable cases is wider than thai conferred by sections 496 and 497 Cr.P.Code—Not confined to statutory limitation laid down in sections 496 and 497—The fact that offence charged with is punishable with transportation for life is not sufficient, to refuse bail u/s 498. Sardar Ataullah. Khan Vs. State, (1963) 15 DLR (WP) 41.

 

—Grant of bail before arrest. Bail before arrest, at the stage of investigation of the case, was granted by the High Court and at the same time held that in normal circumstances such application ought to be made to the Magistrate. Petition made direct to High Court without approaching the local Court on the ground that the police was on the look-out for the petitioner-Petition dismissed and the petitioner was directed to approach local Court. Nasiruddin Shah Vs. State, (1964) 16 DLR (WP) II

 

—Bail granted under section 498 cannot be cancelled by the Sessions Judge in revision. He can refer the matter to the High Court which can cancel it under section 561 A. Undue prolongation of trial is a ground for bail.

Section 498 gives very wide power to the High Court or the Court of Session to grant bail in any case or in the case of a bail having already been granted by a police officer or the Magistrate, and the amount if considered excessive can be reduced. The power conferred by the statute is one for granting bail. The power for cancellation is not provided therein and therefore an order of cancellation of the bail under section 498 is illegal. The High Court may in exercise of its powers under section 561A of the Code of Criminal Procedure can cancel bail granted by a Court of sessions or by the High Court itself, When a Sessions Judge felt disposed to cancel bail granted under section 498 he should refer the matter to the High Court for cancellation of the bail in exercise of his revisional jurisdiction.

 

It is a good ground for consideration of the prayer for bail if the trial is unduly delayed due to the negligence of the prosecution. Haji Sultan Ahmad Vs. State, (1964) 16 DLR 325.

 

—Circumstances which disentitle an accused to get bail. Accused's right to look after his case not to be unnecessarily curtailed.

Possibility of an acquitted person in an appeal against an order of acquittal—Such as absconding or tampering with witnesses or hindering the prosecution of the appeal are some of the considerations which the Court have considered relevant for this purpose. No person should be deprived of his liberty or denied the opportunity to look after his own case, except for sufficient and cogent reasons. Thus where Ihc accused person is capable of absconding or of tampering with witnesses, the maximum restraint may well be justifiably imposed. Khalid Saigol Vs. State, (1962) 14 DLR (SC) 321.

 

—Second application for bail before the same Court will not be entertained unless a new ground for modification of the earlier order has been made out.

A second application for the grant of bail, when the first application has been refused by the High Court, would not ordinarily be entertained. The same principle should apply in the case of an order where bail has been granted but the party is unable to avail of it for some reason or other. The only exception to this rule, however, is that, where new or additional grounds are shown, such an application may be maintainable.

The petitioner was directed to be released on bail of Rs.. 100,0007- with two local lawyers sureties of like amount. The petitioner made an application for modification of the above order on the ground that no sureties to the extent of the amount mentioned could be secured by him.

 

Held : This is a sufficient circumstance which entitles the petitioner to make the second application for modification of the previous order. Harsha Nath Pal. Vs. Stale, (1958) 10 DLR 452.

 

—Principles to be kept in view in a bail application before the High Court.

The High Court, while considering a bail application, is precluded from entering into very close scrutiny of the facts. The granting of bail under section 498 is discretionary with the Court. An accused who has been charged with a non-bailable offence cannot claim bail as of right. Md. Ayub Vs. State, (1959) 11 DLR (WF) 118; (1959) PLD (Kar) 37.

 

—In using its discretion, the Court should take into consideration,—

(1) Whether there is a prima facie case against the accused;

(2)  Whether the release of the accused on bail would place him in a position of advantage;

(3)  Whether'the accused if at liberty, would tamper with and destroy the evidence;

(4)  Whether the offence with which he is charged   is   heinous   and   is   under   public condemnation;

(5) Whether the accused is a habitual offender;

(6) Whether by his detention in jail his defence in Court would be hampered;

(7)  Whether on account of his detention his dependents would be deprived of their subsistence;

(8)  Age, health and sex of the accused.  Md. Ayuh Vs. State (1959) 11 DLR (WP) 118; (1959) PLD (Kar) 37.

 

— The High Court and the Sessions Court can grant bail uninfluenced by section 497. That the generality of the words "in any case" or "any person" occurring in section 498 should be given full effect, and the limitation on bails, in respect of non-bailable offences, imposed by section 497  should not be held to govern section 498. Muhammad Ayub Vs. Md. Yakub (1967) 19 DLR (SC) 39.

 

—Same   considerations  which   have   to be weighed   in  granting bail  under section 497,  would   also  apply   in   case  of section 498. The policy of the law, in respect of bail to persons, accused of non-bailable offences, is laid down in section 497, and the same policy should be kept in view, while considering the question of bail under section 498. In this respect, therefore, section 498   of the Code,  seems  to be  "ancillary or subsidiary" to sections 496 and 497 of the Code, in the words of the Privy Council. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 39.

 

—Grounds of granting bail for offences involving death sentences—High Court not to embark on lengthy enquiry as to whether recorded evidence discloses an offence punishable under section 302 P.P.Code as that would be prejudicing the case on merits. The policy of the law enunciated in Muhammad Ayub Vs. Muhammad Yaqub and the State is that -pcrs6ns accused of offences punishable with death or transportation for life arc not to be released on bail, except on the conditions laid down in section 497.

 

Under section 497(1) if reasonable grounds appear that a person has been guilty of an offence punishable with death or transportation, bail may be granted only if the accused is a female or is under the age of sixteen years or is sick or infirm. Though none of those conditions applied in the case of the appellants, the learned Judge granted them bail by embarking on an inquiry whether the evidence recorded by the Committing Magistrate disclosed an offence punishable under section 302 or that the offence falls within the purview of section 325 PPC. This appraisal of the medical evidence was bound to affect the judgment of the trial court for it ooukl be assumed that in granting bail the High Court had concluded that there did not appear grounds for believing that they had been guilty of an offence punishable with death or transportation for life. It was, therefore, idle to add; "without expressing any opinion on the merits of the case lest it should prejudice a party's case the petitioners are ordered to be released on bail". Muhammad Aslam Vs. State, (1967) 19 DLR (SC) 445.

 

—Power that can be exercised in case of grant of bail under section 498. In other respects section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but rcvisional powers on the High'Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the Police and enables these Courts to exercise the power of anticipatory bail, in suitable case.

 

Cornelius, C.J.—Section 498, Cr.P.C., is not to be construed to extend the power of the High Court, or a Court of Session, to grant bail in cases where these Courts would not be competent to grant bail under section 497, Cr.P.C. Muhammad Ayub Vs. Muhammad, Yakub, (1967) 19 DLR (SC) 38 (39).

 

—Bail before arrest.

Document allegedly forged ex-fade does not show any tampering nor indicates any forgery-There is'no other material on record to support the allegation.

 

Held: Accused has made aprima'facie case to be entitled to bail before arrest. Shabeehul Hassan Vs. The Stale, (1970) 22 DLR (WP) 216.

 

—Cancellation of bail (granted earlier) does not necessarily mean that the accused was put into police custody and hence no action under section 224 P.P.Code against him is lawful.

 

Held : The cancellation of the bail by the Sessions Judge did not in the circumstances of the present case, entail the consequeunce that he had to be ordered to be given into the Police custody without there being a request in that behalf by the police itself. Sadiq AH Vs. State, (1966) 18 DLR (SC)393.

 

—The words "in any case"-refer to cases to which the code is applicable. The words "in any case" used in section 498, Cr.P.C. are applicable to a case to which the Code of Criminal Procedure is applicable, and obviously if a case is beyond the scope and purview of the Code, to that section 498 would not be attracted. Gabhna Vs. The State, (1968) 20 DLR (WP) 271.

 

—Their respective  scope. Hamoodur Rahman, J.—This Chapter on bail (namely Chapter XXXIX) deals with the cases of persons arrested or detained without warrant by police officer or who appear or are brought before a Court at any stage of any investigation^ enquiry or trial. This Chapter does not deal with the cases of persons tried and convicted or acquitted, as their cases are specifically provided for by sections 426 and 427 of the Code.

 

The earlier view that even the cases of convicted person could be brought within the ambit of section 498 is no longer tenable. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 40.

 

—Bail application when made under section 498 must specifically mention this section in the cause tide of the petition and the accused must surrender in Court before the application is heard. Abdus Sukur Vs. the State, (1973) 25 DLR 119.

 

—Bail before arrest can only be made by High Court and the Court of Sessions. Section 498 would be called in aid, before the Court of Session and the High Court, even where the Court is not seized directly of the proceedings in question and where no actual arrest has been made so far but anticipatory bail is asked for. The power to such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. The High Court or Court of Session would also of course have concurrent as well as revisional powers, in respect of orders by the police or the matter of bail under section 498, read with sections 496 and 497. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 39.

 

—Bail before arrest—Procedure to be followed in rejecting a bail application. Sessions Judge without considering prima facie aspect of bail application issued notice to prosecution—High Court directly entertained the bail application disapproving the practice of issuing notice—Each bail application should be scrutinised by the Sessions Judge to consider its merits and if rejected he should reject it instantly so that the aggrieved person could seek his remedy iri the superior Courts without any let or hindrance. Shabeehul Hassan Vs. The State, (1970) 22 DLR (WP) 216.

 

—Looking at section 498 as a whole it cannot be said that it is an entirely independent section. The power of granting bail given to the High Court and the Court of Sessions under section 498 is wider than that conferred on the Officers-in-Cbarge of Police Stations and the inferior Courts under Sections 496 and 497 and there is no valid consideration for restricting the powers of granting bail conferred upon the High Court and the Court of sessions by the Section 498. (Differs from whaj has been said by S.A.Rahman, J.) Muhammad Ayufo Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38(40).

 

—The section gives wider power to the superior Courts to grant bail in appropriate circumstances. The power of granting bail under section 498 is in the nature of a residuary and supplementary provision giving to superior1 Criminal Courts wider power to grant bail in appropriate cases to persons to whom bail cannot be granted under sections 496 and 497. Section 498 gives extended and wider powers to the High Court and the Court of Sessions. But this power will no doubt be normally exercised in a judicial manner taking into account the limitation placed by other provisions of the- Code upon subordinate authorities and that a rule founded on justice and equity will not be disregarded unless there be exceptional circumstances.

 

But this is a self-imposed restriction and this should not be held to debar the High Court and the Court of Session from deviating from it in exceptional cases. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38(40).

 

—Yakub AH, J.—The view that the powers conferred on a High Court and Court of Session by section 498 to admit any person to bail are subject to the limitations imposed by section 496 and that section 498 is in this respect subsidiary and ancilliary to section 497 can not be accepted. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38(40),

 

—No warrant to import into section 498 the ingredients of section 497—Words "in any case" and "any person" explained.

 

There is also no warrant to import into section 498 the ingredients of section 497. Sections 496 and 497 speak of bail and bonds^The first part of section 498 emphasises that Court and Police Officers shall fix   their   amount   with   due   regard   to   the circumstances of the case and shall not be excessive and the concluding part empowers the High Court or the Court of Sessions to reduce the bail required by the police officer or Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and 497. The remaining part of the section which confers on the High Court or Court of Session the power to admit any person to bail in any case and whether there can be an appeal on conviction or not is, however, an independent provision.  The  plain  meaning  of the  words employed by the Legislature in section 498 cannot be departed from by any rule of construction. The words "in any case" do away with the distinction made in section 497 between cases punishable with transportation for life and death and cases involving lesser penalty.

Similarly the use of the words "any person" confer jurisdiction in respect of persons who may not be under arrest and does not appear in obedience to the process issued by the Court or are not brought before the Court as envisaged in section 497. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38(40).

 

..Section 498 Cr.P.C. is ancillary or subsidiary to "sections 496 and 497 Gr.P.C. in the words of the Privy Council. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38(39).

 

—Read  with  s.497(5) can cancel a bail.

 

1884

CONTEMPT OF COURT ACT (XII of 1926).

Citation: (1966) 18 DLR (SC) 463, (1966) 18 DLR (SC) 295, (1986) 38 DLR (AD) 188, 1966) 18 DLR (SQ295.

Subject: CONTEMPT OF COURT

Delivery Date: 2018-10-02

 

CONTEMPT OF COURT ACT (XII of 1926).

 

Proceedings for Contempt of Court should not be lightly started. M.O. Ghani Vs. A,N'MMahmud (1966) 18 DLR (SC) 463.

 

Conviction of a person for Contempt of Court in the absence of such contcmner not justified except in exceptional cases. Editor, Daily Nawa-I-Waqt Vs. State (1966) 18 DLR (SC) 295.

 

Executive arm of the Government will not be allowed to attack and deface the honour, dignity, majesty and independence of the judicial organ of the State. Abdul Karim Sarker Vs. The State (1986) 38 DLR (AD) 188.

 

Contempt of court—Apology when offered — Some tests laid down for acceptance of apology by the contemner. "In considering whether the apology should be accepted or not, a few facts should be taken

into consideration". These facts, as mentioned by the Court, are:

 

(i) As to whether the appellant appreciated that his act was within the mischief of contempt;

 

(ii)     Whether he regretted it;

(iii)    Whether his regret was sincere;

(iv)    Whether it was accompanied with expression of the resolution never to repeat again, and

(v)     Whether he made humble submission to the authority of the Court". Abdul Karim Sarker Vs. The State (1986) 38 DLR (AD) 188.

 

Ss. 2 & 3 —Conviction of a person for Contempt, of Court in the absence of such Contemner not justified except in exceptional cases. Editor, Daily Nawa-I-Waqt Vs. State (1966) 18 DLR (SQ295.

 

1885

Criminal Law Amendment Act (XL of 1958)

Citation: 5(2) LNJ 15

Case Year: 1958

Subject: Criminal Law

Delivery Date: 2018-04-01

Criminal Law Amendment Act (XL of 1958)

Section 2(b)

There can be no doubt that coverage of section 2(b) of Act XL of 1958 is far wider than that of section 21 of the Penal Code. The two provisions have only to be looked at by side to be sure that more people can now be called public servants for the purposes of the anti-corruption law. The word "any" as mentioned in section 2(b) included "all" or "every" as well as "some" or "one" depending on the context of the subject matter of the statute. The word "any" used in section 2(b) has diversity and may be employed to indicate "all" or "every" as well as "some" or "one". The word "body" as used in section 2(b) means a number individually spoken of collectively, usually associated for a common purpose, joined in a certain cause or united by some common tie or occupation. Anti Corruption Commission Vs. Mohd. Shahidul Islam and others, (Civil), 5(2) LNJ 15

1886

Criminal Trial Synopsis

Citation: (1970) 22 DLR (WP)158, (1981) 33 DLR 379, (1974) 26 DLR 419, (1957) 9 DLR (WP) 1,(1973)25 DLR 335, (1972) 24 DLR 230, (1981) 33 DLR 104, (1982) 34 DLR 303, (1970) 22 DLR 110, (1987) 39 DLR 214, (1987) 39 DLR 333, (1975) 27 DLR (SC)1, (1951) 3 DLR (FC) 1

Subject: Criminal Trial Synopsis

Delivery Date: 2018-09-27

Criminal  Trial Synopsis

1. Abetment

2. Abetment charge

3. Absconder—Trial of

4. Accused

5. Accused acquitted

6. Accused's admission

7. Accused at large

8. Accused's plea of guilty

9. Accused can be convicted

10. Accused's silence

11. Accused's statement

12. Accusation

13. Acquittal

14. Adjournment

15. Adultery

16. Adulteration

17. Adverse remarks

18. Advocate accepting brief

19. Advocate appointed at Govt. expense

20. Affidavit on oath

21.  Alibi

22. Alibi—plea of 22 A. Ambiguity

23. Appeal

24. Armed force

25. Army official

26. Assessor

27. Attendance

28. Autrefois acquit

29. Benefit of doubt

30. Blood marks

31. Bribe

32. Burden to prove 32A. Capital Sentence

33. Case

34. Case and counter case

35. Case of criminal offence.

36. Case .pending in Court

37. Case tried under M.L.R.

38. Case exclusively triable by Sessions Judge

39. Change-

40. Charge

41. Charge-sheet

42. Circumstantial evidence

43. Civil and Criminal Court

44. Cognizance

45. Commencement of Trial

46. Commissioner

47. Committing Magistrate's duty

48. Communication to the Court

49. Competency of the police officer

50. Complaint

51. Compromise

52. Conduct of the accused

53. Confession

54. Confessional statement

55. Confiscation order

56. Confrontation

57. Conspiracy and abetment

58. Conspiracy between husband and wife

59. Contempt proceeding

60. Contravention of Law

61. Conviction

62. Conviction without discussion and consideration of evidence—Can not be sustained

63. Conviction for abetment of murder without the charge of abetment

64. Conviction of several accused persons

65. Conviction on vague allegations

66. Conviction—omission to record

67. Conviction on matters not on record

illegal

68. Conviction recorded under one or two

offences charged

69.  Cost

70. Counter cases

71. Court

72. Court's approach

73. Court's duty

74. Court's inherent power

75. Court's function

76. Court of revision

77. Court's order

78. Court's responsibilities

79. Court set up under special statute

80. Court to see

81. Crime and offence

82. Criminal proceeding when starts

83. Criminal prosecution

84. Cross-examination

85. Custody

86. Custody of accused

87. Customs officer's competency

88. Defence and prosecution case

89. Defence plea

90. Defence—theory of

91. Defence version

92. Defence when raises doubt

93. Delay

94. Delegation

95. Delegation of legislative power

96. Delegated legislation

97. Delivery of property

98. Departmental action

'99. Dcprivation'of a citizen's liberty

100. Detention

101.  Detention of the members of the Legislative Assembly

102.  Detention of girl in custody

103. Detention—legality of

104. Digestion of food

105. Discharge

106. Discrepancies in evidence

107.  Dispensation of justice

108. Dispute regarding land

109. Disturbance of public order

110. Document

111. Double jeopardy—Actrcfois acquit

112.  Double punishment

113. Doubt in the prosecution case

114.  Duty of the court

115. Emergency when relevant

116. Emphasis on minor discrepancies

117. Enforcement of the attendance

118. Equal treatment

119. Error apparent

120. Evidence

121. Evidence at the appellate stage

122. Evidence on record

123. Existing trade

124. Expunction

125. Extraordinary direction

126. Facts

127. Factum of a statement

128. Failure of the defence

129. Failure of justice

130. Failure to comply

131. Failure to keep

132. Falsity

133. Findings

134. Firing—plea of obedience

135. F.I.R

136. Food digestion

137. Forged document

138. Forum for trial

139. Fresh complaint

140. Fresh examination of evidence

141. Fresh trial

142.  Fugitive

143. Function of the Sessions Judge

144. Functioning of the Jatiya Rakkhi Bahini

145. Functus Officio

146. Further enquiry

147. Government's dealing

148. Government Lawyer

149. Government Order

150. Government publicity machinery

151. Government Servant

152. Government when a party

153. Grant of leave of absence 153A. Grievance

154. Hearsay evidence

155. High Court of Dhaka

156. High Court's orders 157: High Court's powers

158. High Court's superintending power

159. Highhandedness of Government Official

160. Highly injudicious order

161. Identification

162. Identification of foot print

163. Identification Parade

164. Indication

165. Ingredients

166.  Initial complaint

167. Innocence—presumption of

168. Insanity

169. Inspection

170. Interference in revisional application

171. Interference with an order of acquittal

172. Interference with even flow of justice

173. Investigating officer

174. Investigation  ,

175. Irregularity

176. Judge's function

177. Judgment

178. Judicial courtesy

179. Judicial discretion

180. Judicial function

181. Judicial notice

182. Judicial power

183. Judicial statement

184. Judiciary and police                       

185. Jurisdiction

186. Jurisdiction to try

187. Jury, Trial by 188.'Justice

189. Last moment appointment

190. Late appointment

191. Law's course

192. Lawful excuse

193. Law taking effect

194. Lawyer engaged by the State         

195. Lawyer's responsibility                

196. Legal evidence

197; Legal practitioner's Misconduct

198. Legislative powers

199. Legislature

199A. Leniency in the matter of Sentence

200.  Limitation

201. Long delays

202. Magistrate                                    

203. Magistrate taking cognizance      

204. Magistrate when acting judicially  

205. Magistrate's duty                         

206. Malafide                                 

207. Martial Law

208. Martial Law Court

209. Master's liability

210. Mens rea

211. Method of defence

212. Minister

213. Misconduct

214. Misdescription                           

215. Misuse of power

216.  Motive                                      

217. Natural justice

218. Non consideration of important  circumstances

219. Non-examination of the I.O. when   ' prejudices the defence

220. Oath

221. Observation by the High Court

222. Offences                                    

223. Official use only

224. Omnibus statement

225. Ordinance

226. Parliamentary privileges and immunities

227. Particulars regarding commission of several offences                   ^

228. Pendency of a civil suit

229. Pending cases

230. People's right of criticism of government

231. Person' and 'accused'

232. Pith and substance

233. Place of trial

234. Place of trial in jail

235. Plea of accidental death

236. Plea of payment

'237. Police's indiscreet and illegal action

238. Possession of rationed or fair priced commodities

239. Post Mortem

240. Power to conduct private case by Deputy Attorney-General

241. Practice of Dacca High Court

242. Preamble

243. Prerogative of the Crown

244. Preparation

245. Presence of corpus delicti

246. President's Order 50

247. Presumption of guilt

248. Principle

249. Principle of double jeopardy.

250. Private complainant

251. Procedure 252., Procedural law

253. Production of accused

254. Professional duty

255. Professional misconduct

256. Prosecution and defence

257. Prosecution version

258. Provocation—plea of

259. Public agencies

260. Public Prosecutor

261. Public servant

262. Punishment of offences

263. Quashment of criminal proceedings

264. Quashment of pending proceedings

265. Question raised

266. Reason to suspect

267. Reasonable doubt

268. Reasonable facilities

269. Rebuttal

270. Re-enactment

271. Re-examination and re-assessing evidence

272. Re-investigation

273. Rehearing

274. Rejection of Final Report

275. Relief

276. Remand

277. Requirement of Law

278. Retrial

279. Retrospective effect

280. Retrospective operation

281. Rcvisional petition

282. Right of appeal against conviction

283. Right of being heard

284. Right of every accused

285. Same consideration

286.  Sanction

287. Satisfaction

2.87A. Self searched out and self invented circumstances

288. Sentence

289. Service of show-cause notice

290. Session Judge's duty

291. Sexual offence

292. Showing of leniency

293. Signature

294.  Simultaneous trial

295. Special Court

296. Special jurisdiction

297. Special leave

298. Special Magistrate

299. Specific allegation

300. Stare decisis

301.  Statement

302. Stay of criminal cases

303. Stay of criminal proceeding

304. Stay the disposal of criminal case

305.  Subordinate Court's responsibility

306.  Summary Military Court

307. Supreme Court

308. Suspension from practice   ,

309.  Suspicion.

310. Taking cognizance of an offence

311. T.I. Parade

312. Trap

313. Travesty of the judicial procedure

314. Trial

315.  Trial—simultaneous trial of two cases

316. Trial by jury

317. Trial held without the aid of Assessor

318. Trial—place of

319. Trial Court's estimate

320. Trial of a case

321. Trial in the accused's absence

322. Two cases—consolidation—Disposal together.

323. Uncorroborated evidence

324. Undefended accused

325. Utilizing the materials

326. View of the place of occurrence

327. Warrant case

328. Warrant of arrest

329. Weapons of crime 329A.When not incompatible with the

innocence of accused

330. Withdrawal of a case

331. Withdrawal of criminal prosecution

332. Withdrawal of Trial

333. Witnesses

334. Witnesses—Tendered by prosecution.

335.  Working days

 

1.   Abetment

Abetment—For   sustaining   a   charge   of abetment, some evidence of overt act or commission necessary—Mere motive is not sufficient evidence of abetment. Murad All Vs. The State (1970) 22 DLR (WP)158

 

[The subject-matter of abetment comes u/ss. 107 and 108 of Penal Code.]

 

—"Abetment" is an offence by itself and unless it is specifically made punishable in a Special Act a person can not be called upon to answer a charge of abetment in the absence of any specific provision in the Special Act merely by reference to the Penal Code. Abdul Halim Pattader Vs. M.Rahmat All (1981) 33 DLR 379.

 

2. Abetment Charge

Identity of the accused not established. Abetment charge must fail. The Slate Vs. Makbul Hossain & Others (1974) 26 DLR 419.

3. Absconder—trial of

High Court found no case against himNo trial to be held.

One of the accused in a murder case was found absconding. The High Court, while considering the evidence on record, in the course of an appeal by the convicted co-accused, found that no case would lie against the absconder and thereupon directed that no proceedings shall be taken against him when he returns from hiding. Shahbaz Vs. Crown (1957) 9 DLR (WP) 1.

 

4. Accused

The expression 'accused' carries with it a social stigma and if improperly applied may lead to unhappy results. Social dignity guaranteed in the Constitution. A.T. Mridha Vs. The State (1973)25 DLR 335.

 

—Accused—Reasonable statement by—Benefit of doubt—If the accused immedately after his confrontation gives an explanation which appears reasonable and not inconsistent with the defence case then he is entitled to benefit of doubt. Abdul Ghani Vs. The State (1972) 24 DLR 230.

 

—When from the charge-sheet it appears that the persons shown therein are treated as accused— They should be treated as accused. Bishnu Das Gope Vs. The State (1981) 33 DLR 104.

 

—Accused convicted on two different penal sections but the order said nothing under which section the sentence was passed. The irregularity cured by section 537. Md Abdul Karim Mondol Vs. Fazlul Bari (1982) 34 DLR 303.

 

—Person accused not sent up for trial—not an accused person and, therefore, can be examined as a witness. An accused person not sent up for trial was not strictly an accused in the case and he could be examined as a witness in the trial against the co-accused and his evidence though admissible would be of very little weight. Abdur Rashid Vs. The State (1970) 22 DLR 110.

 

—Allegation by the complainant that accused has no subsisting interest in the property in question thus raises a question of civil dispute, not a criminal issue. Maqsood Alam Vs. KM.J. Akbar (1987) 39 DLR 214.

 

—In one breath the Magistrate held the accused guilty of the offence, and in the next breath he acquitted him of offence. This is deprecated. Abul Bashar Vs. Nurun Nabi (1987) 39 DLR 333.

 

5. Accused acquitted

Accused acquitted by the Appellate Division of the Supreme Court on an appraisement of the evidence without the case being sent back for retrial even though insufficient cross-examination led to his being held guilty. In consequence of examination of the evidence adduced by the prosecution, we are of the view that despite the laches in respect of cross-examination of the witness by the learned Advocate who defended the prisoner at the Government expense, the guilt of the prisoner has not been proved beyond all reasonable doubt and, as such, there should not be an order of retrial of the prisoner. Abdur Rashid Vs. State (1975) 27 DLR (SC)1.

 

6.  Accused's  admission

An admission made by an accused person in or out of Court, unless it be vitiated by any such circumstances as are mentioned in the Evidence Act, can be considered to be a matter which the Court may lake into consideration in coming to its conclusions. Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53 (66) (l.h.col. bottom) (Munir, J. giving a dissentient view in the same case).

 

7. Accused at large

When appeal is being heard—The accused, who was acquitted by the Sessions Judge, was on appeal by the Crown, convicted and sentenced to transportation for life by the High Court. He was, however, not arrested by the authorities for more than 5 months and, by the time of the hearing of his petition for special leave to appeal, was still at. As the accused had not been arrested for a period of over 5 months, he was directed not to be taken into custody pending decision of his appeal. Inayetulla Vs. Crown (1951) 3 DLR (FC) 115.

 

8. Accused's plea of guilty

Accused pleaded guilty and is convicted without affording opportunity to defend himself. This smacks of a mockery of justice. The police officer arrested the petitioner, produced before the Magistrate with a complaint and the Magistrate at once commenced trial in the thana premises and not in the Court room and the petitioner is shown to have pleaded guilty and is convicted, without affording an opportunity to defend himself. This smacks of a mockery of justice. Ataur Rahman Vs. The Slate (1969) 21 DLR 310.

 

9. 'Accused can be convicted

Accused can be convicted on his pleading guilty—But such conviction not proper without materials on record to support it. Ataur Rahman Vs. The State (1969) 21 DLR 310.

 

10.  Accused's  silence

Accused's silence^ in respect of statement  amounts to admission. Acceptance of his statement—It is true that statement made in presence of an accused person even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement as to make it in effect his own; but the acceptance of the statement may be either by word or by conduct or action or demeanour. Md. YusufVs. Crown (1955) 7 DLR 302 (312).

 

11.  Accused's  statement

When it is not possible to arrive at any conclusion that trie accused person acted, as he alleges, he did, on consideration of his own statement alone, it is necessary to place his evidence alongside other evidence and circumstances 'of the case and then to come to a conclusion. Safder All Vs. Crown (1953) 5 DLR (FC) 107 (122).

 

—Accused's statement, in Court should be taken into consideration in its entirety, if conviction is to be based solely on such statement. Rahim Bux Vs. Crown, (1952) 4 DLR 53(61).

 

—Acceptance of accused's statement—It is true that statement made in presence of an accused person even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated, save so far as he accepts the statement so as to make it in effect his own; but the acceptance of the statement may be either by word or by conduct or action or demeanour. Md. Yusuf Vs. Crown, (1955) 7 DLR 302 (312) (r-h. col. bottom).

 

—Accused's statement in court should be taken into consideration in its entirety, if conviction is to be based solely on such statement. Rahim Bux Vs. Crown (1952) 4 DLR 53 (61).

 

12.   Accusation

Accusation under law special—namely, the East Pakistan Pure Food Ordinance, 1959, but conviction under the Pakistan Penal Code—illegal. District Council, Kushtia Vs. Abdul Ghani (1970) 22 DLR 217.

 

13.   Acquittal

Reversal of the acquittal of the accused by the judgment Of the High Court and its replacement by a conviction (by the Appellate Division of the Supreme Court) is possible only if the Appellate Division be satisfied independently that the evidence in the case was in quality and quantity adequate to support conviction of the offence charged. Unless it is possible to demonstrate with certainly that none of the grounds upon which the learned Judges have purported to acquit is at all supportable the Supreme Court will be reluctant to interfere with the order of acquittal. Siraj Din Vs. Kala (1964) 16 DLR (SC) 94.

 

—In a trial, some accused were convicted and others acquitted by the magistrate—Upon remand, the Magistrate upheld conviction of the person whose case on appeal remanded to him and in writing out judgment repeated his earlier order of acquittal, Held : Such repetition of the word "acquittal" in the judgment does not vitiate the trial. Abdul Jabbar Vs. Rabeya Khatun (1970) 22 DLR .410.

 

—It is quite conceivable that these conditions might be satisfied in a case in which the State might not choose to move the Supreme Court against an order of acquittal, and it is, therefore, of great importance that the Court should not be understood to place an absolute bar against motions of this kind. Md. Ashiq.Vs: Allah Bakhsh (1964) 16 DLR (SC) 55.

 

—Special jurisdiction should be conferred on the appellate court in case the legislature intended that there shall be an appeal against the order of acquittal—Where none so provided no appeal against acquittal would lie. Abdul Halim Vs. Member, App. Tribunal (1982) 34 DLR 309.

 

—Accquittal order by a Court not having jurisdiction—ultra vires, even if not challenged by way of appeal. The contention was that the trial had proceeded to a point at which most of the prosecution evidence had been given and the magistrate had framed a charge; that at the stage counsel for the prosecution refused to attempt to prove that a prppcr sanction had been given or to call further evidence, and that, in the circumstances, the magistrate had no option bin to acquit the accused under section 258, Criminal Procedure Code.

 

Held : This contention might have had some force if the Magistrate acquitted the accused because he thought the prosecution had failed to prove their case and if he was not asked to decide, and did not decide on the validity of sanction. But the Magistrate having reached the conclusion that the sanction was bad and the prosecution was incompetent, he ought to have discharged the accused on the ground that he had no jurisdiction to try him. The orders of acquittal were passed without jurisdiction and would only operate as orders of discharge. (1950) 2 DLR (PC) 151.

 

—The contention was that as the orders of acquittal passed by the Magistrate in the first prosecution were not appealed from, they became binding on the expiration of the period of limitation under Article 147, Limitation Act.

 

Held : If the orders of acquittal were passed by a Court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal. But if the orders were a nullity, there was nothing to appeal against. (1950) 2 DLR (PC) 151.

 

—It may be that the Government, being embarasscd by the order of acquittal, might have applied to the High Court to quash them. But the omission of the Government to take such a step, which was not incumbent, would not convert an order made without jurisdiction into an order passed by a Court of competent jurisdiction! (1950) 2 DLR (PC) 151.

 

—Under the common law, a plea of autrcfois acquit or aulrefois convict can only be raised where the Trial first was before a court competent to pass valid order of acquittal or conviction. (1950) 2 DLR (PQ151.

—Acquittal by High Court—Interference not favoured by Supreme Court unless there is gross miscarriage of justice. State Vs. Fazal (1987) 39 DLR (AD) 166.

 

—In this case order of acquittal of the accused person be revised and the accused be tried lawfully— Appeal in this case being incompetent the proceedings were converted into a rcvisional proceeding. Moulana Ahmadullah Vs. The Slate 38 DLR 82.

 

14.  Adjournment

Adjournment of sessions case—Criminal Procedure Code does not contemplate adjournment of sessions case. Therefore, both the prosecution and the defence must get ready for trial on the date fixed.

Courts concerned and the prosecution should treat a sessions trial very seriously since defence has to incur heavy expenditure and lake pains—Often accused party totally ruined by the time trial is over—Duty cast on the police to prosecute where reasonable evidence exists. In cases instituted upon a complaint it is also the sacred duty of the magistrate to issue process only against those persons against whom there is^ good reason to believe that they have committed a criminal offence. Sessions Judge has no power to issue process against an accused not sent by Magistrate. Fazlul Huq Haider alias Mollah Vs. Stale (1983) 35 DLR 1.

 

—Indefinite adjournment sine die is against the policy of criminal law—It is of great public importance that an accused should be brought to trial as early as possible. Rafique Ahmed Vs. Badiul Alam (1987) 39 DLR 303.

 

15.  Adultery

Adultery, connivance by the husband—when bars a criminal prosecution—"Connivance", explained. Merc passive inaction is not enough for a finding of connivance, but as was said by the House of Lords in Gipps Vs. Gipps (1864) 11 HLC 3, "conniving" means "not merely refusing to sec an act of adultery but also wilfully abstaining from taking any step to prevent adulterous intercourse which, from what passed before the husband's eyes, he must reasonably accept, will occur". In Halsbury's Laws of England, Vol.12. Third Edition, para 589 at page 297, it is stated that connivance is not limited to active conduct. "It includes the case where a spouse acquiesces in the adultery alleged, that is to say, where the spouse is aware that a certain result will follow, if he docs nothing and desires the result to come about. On the principle of volenti non fit injuria, a person cannot complain of act he passively assents to." Alt Nawaz Gardezi Vs. Md. Yusuf (1963) 15 DLR (SC)9.

 

16.  Adulteration

Of ghee proved by Analyst—Analyst giving report must be examined to support conviction— without examining him the report is inadmissible. Jafar llossain Vs. Dacca Municipality, (1969) 21 DLR 623.

 

17. Adverse Remarks

Condemning a person unheard unjust: Adverse remarks against a third party should not be made without giving him an opportunity of being heard— Saddling a person with liability to pay without hearing him improper. M.S. Nurul Alam Vs. State (1986) 38 DLR 333.

 

18. Advocate accepting brief

We think it necessary to observe that the Advocate who accepts a dock-brief and undertakes to defend an accused of capital offence without trying to know anything about the case offends against the tradition of his profession. It is his duty to ask for time and pray for adjournment where at last moment appointment is made to defend an accused involved in a murder case. Abdur Rashid Vs. The State (1975) 27 DLR (SC) I.

 

19. Advocate appointed at Govt. expense

Advocate appointed (at Govt's expense) to defend an accused of capital offence—Duty which he should be careful to observe. Abdur Rashid Vs. The State (1975) 27 DLR (SC) 1.

 

20.  Affidavit on  oath

Affidavit on oath—Facts stated therein not controverted by counter-affidavit—Courts have no option but to accept them as correct. A.T.Mridha Vs. The State (1973) 25 DLR 335.

 

21.   Alibi

The defence of the accused were twofold, (a) plea of alibi and that the (b) accused acted under compulsion. If the judge is precluded from considering defence of compulsion because of the defence of alibi. Khotso Sephakelal Vs. Queen (1956) 8 DLR (PC) 25.'

 

—The tendency to include the innocent with the guilty is peculiarly prevalent in India: and it is very difficult for the Court to guard against such danger. An Indian villager is seldom in a position to produce

cogent evidence of alibi. Bhubani Vs. King (1950) 2 DLR(PC) 39.

 

22.  Alibi—plea  of

Alibi, plea of—if not substantiated, whether tells upon the defence case. It is to be remembered that if the plea of alibi is not .believed, it does not necessarily follow that the prisoner committed the murder. The prosecution is to prove the guilt of the accused and failure on the part of the defence to substantiate any plea taken by it does not necessarily prove the guilt of the accused. According to the settled principle of law the burden to prove the guilt of the accused is primarily and principally upon the prosecution. Abdur Rashid Vs. The State (1975) 27 DLR (SC) 1.

 

22A.   Ambiguity-

Ambiguity arising out of unhappy drafting in law : The people in the legal circle of the country have been complaining about the recent'unhappily drafted, haphazard and sporadic amendments made in the Cr. P. Code. Mohammad Abul Kalam Azad Vs.The State (1986) 38 DLR 159 .

 

—Difficulty arising from the provision as drafted in sub-sees. (6) and (7) of sec. 167 to be resolved so as to avoid any unwarranted conclusion. Mohammad Abul Kalam Azad Vs.The State (1986) J8 DLR 159.

 

23.  Appeal Forum of appeal—Trial by Special Magistrate.

Where a Magistrate acts not as Special Magistrate appointed under a special law but as an ordinary Magistrate specially empowered by the Provincial Government in this behalf, an appeal will lie against his decision in the usual course under section 408 of the Code of Criminal Procedure. The Magistrate in the present case being a Magistrate under the Code of Criminal Procedure his order would be appealable or revisable under the said Code. Alok Kumar Ultra Vs. Ramjan AH, (1970) 22 DLR 1 to benefit of doubt. Abdul Gani Vs. State (1972) 24 DLR 230.

 

—Court obliged to carefully examine the prosecution case as well as the defence version., If the defence put forward on behalf of the accused has a reasonable possibility of being true— accused entitled to a verdict of benefit of doubt. Muslimuddin Vs. State (1986) 38 DLR (AD) 311.

 

30. Blood marks

Blood marks—Delay in the analysis by the Serologist results in defeating justice. It is of the utmost importance that the Serologist's Department should exercise the greatest care to see that not a day's delay unnecessarily occurs in subjecting exhibits of this kind sent to them for analysis. Sardar Ali Vs. The State, (1967) 19 DLR (SC) 113.

 

31.   Bribe

when taking of bribe may be circumstantially corroborated. Recovery of marked notes from the accused— should be corroborated in material particulars by disinterested and independent witnesses. Procured witnesses for the purpose of watching bribe-giving and bribe-taking not a proper course for proving prosecution story. Abdul Jabbar alias MA. hibbar Vs. The State (1983) 35 DLR 257.

 

32. Burden to prove

Burden to prove the prosecution case is on the Prosecution alone—which never shifts—if prosecution fails in this—accused gels acquittal even if the defence fails to establish its version. Shamsul Huq Vs. The State (1986) 38 DLR (AD) 75.

 

32A.     Capital  Sentence.

Capital sentence is troubling the mind of people in our society. Legistature is to bring necessary amendment. It is true capital sentence is troubling the mind of many people in our society. The question whether condition prevailing in our society will justify abrogation of capital sentence is the matter for the

society to create public opinion. So the Legislature is to bring about'necessary amendment and till then judiciary is under legal obligation to award capital sentence in deserving cases. Nowsher Ali Vs. Stale 39 DLR 5 9                

 

33. Case

Import of the word 'case' As soon as an offence is committed (whether the offence is a cognizable or non-cognizable one), 1 facts constituting such offence make them a 'case' as the word is used in the Criminal Procedure Code even before submission of charge-sheet by the police   , or before the cognizance of the offence has been   ' taken by the court. A cogniablc case means a case in which a police officer within or without prcsidcnccy towns I may, in accordance with the Second Schedule or under any law for the lime being in force arrest without warrant. Similarly, non-cognisable case me,ans a case in which police officer, within or without a presidency town, may not arrest without warrant. Dr. M. Huq Vs. Chief Martial Law Administrator (1980) 32 DLR (AD) 100.

 

34. Case and counter case

Simultaneous trial—There is no objection in law to both the cases being tried by separate judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two courts coming to conflicting findings. Cases and counter-cases should be tried in quick succcssicns by the same judge, who should not pronounce judgment till the hearing of both cases is finished. Shaid Ali Vs. State (1961) 13 DLR 414 : -I 1962 PLD (Dae) 576.

 

35.   Case  of criminal  offence

An act improper or bad not necessarily criminal—Allegations as made in the FIR or charge-sheet do not make out a case of criminal offence. M.G. Towab, Vs. The Stale (1982) 34 DLR 371.

 

36.   Case pending in a Court

With the lodging of the F.I.R. and the submission of the charge-sheet by the police, a case becomes pending in a Court. Ruhul Amin Vs. State (1984) 36 DLR 335.

 

37. Case tried under M.L.R.

Offences committed prior to 15.8.75 by a person in different state can not be tried under MLR. Khalilur Rahman Vs. State (1979) 31 DLR 50.

 

38. Case  exclusively  triable     by  Sessions Judge

If the Magistrate found on the basis of materials that the case is triable by Sessions Judge he should have acted u/s. 205C and not u/s. 205CC. Abdus Salik alias Sarkumullah Vs. The State. (1983) 35 DLR 425.

—Final report submitted by the police and the case record submitted before the Sessions Judge who however directed a fresh judicial enquiry by a magistrate into the matter.

Held : Session Judges could cither accept or reject the final report but could not direct fresh enquiry. Kawser Ahmad Vs. Stale ,(1983) 35 DLR.

 

39.   Change

Change in the composion of the Special Martial Law Court which was to try the appellant created apprehension in the mind of the appellant. Khondeker Moshlaqe Ahmed Vs. Bangladesh (1982) DLR (AD) 222.

 

40.   Charge

Charge which causes prejudice to the accused due to error or irregularity makes out a case for rclrial. All Akbar Khan Vs. Stale (1982) 34 DLR 94.

 

—Ingredients to prove for substantiating a charge of rioting. For substantiating a charge of rioting the prosecution has first to prove the existence of an unlawful assembly with a common object as defined in section 141 of the Penal Code and then to prove that one or more members of the assembly used violence or force in prosecution of the common object. All Akbar Khan Vs. State (1982) 34 DLR 94.

 

—If the police officer who submitted the charge- sheet does not attend the court on summons, warrant of arrest might be issued to enforce his attendance. Solicitor, Govt. of Bangladesh Vs. Yasin Ali (1982) 34 DLR 73.

 

—Murder charge—No eye-witness as to murder but strong circumstantial evidence goes to show that the accused is the person who committed the murder. TouhidAlam Vs. Slate (1986) 38 DLR 289'.

 

41.   Charge-sheet

Police submitted charge-sheet in respect of the accused and final report in respect of several others— Magistrate accepting the police report passed an order of discharge in respect of those dealt in the final report. On naraji petition filed by the complainant the Magistrate directed the police to submit a supplementary charge-sheet for a graver offence for all including those discharged earlier.

Held: Magistrate's direction is illegal and has to be quashed.

 

There being no scope in the scheme of the Criminal Procedure Code to direct the Investigating Officer to submit any supplementary charge-sheet on the basis of the materials on record what he had collected during investigation the impugned order is ex facie illegal and has been passed without any legal authority and this being an abuse of the process of the Court is liable to be quashed. Abdus Salik Vs. The State (1983) 35 DLR 425.

 

—Charge-sheet submitted u/s.!9A(f) of the Arms Act—Later on P.O.50 of 1972 was added to this case by Magistrate after repeal of P.O. 50 of 1972—This did not invalidate the trial of case. Tola Miah Vs. 'Stale (1975) 27 DLR 559.

 

—Rules 272, 275, 276(b) & 277 (Police Regulation) : Police enjoys the unfettered right on an investigation to submit either a charge-sheet or a final report in a particular case, without any interference from the Court.

 

Any direction to a Police Officer to submit charge-sheet after final report has been submitted or to submit a final report after charge-sheet has been submitted, will be illegal. Khorshed Alam Vs. Slate (1975) 27DLR 111.

—Law enjoins upon a Police Officer the duty of investigating into a crime. In the discharge of the said statutory duty he has to embark upon a quest for the discovery of truth and in this quest he may chance to come across new and vital information which may have eluded him earlier and which may, in his opinion, provide the clue to ihe unfolding of truth. In the circumstances it would amount to putting a clog in the due discharge of function of a Police Officer if he is debarred from entering into fresh investigation, on his own, and submitting charge-sheet, if necessary, although a final report had been submitted earlier. Rule 277 of the Police Regulations confers upon the Police such powers. Khorshed Alam ys. State (1975) 27 DLR 113.

 

—Rules 272, 275, 276(a) & 277 : Charge-sheet and final report, explained—Police power to resume investigation after submission of final report. The Criminal Procedure Code docs not contain the words "charge-sheet "or "final report". Rule 272 of the Police Regulations, 1943, however, contains the words" charge sheet" in respect of accused sent up under section 170 of the Code, and rule 275 of the aforesaid Regulations refers to "final report" which is to be submitted in a case which does not result in any charge-sheet. Rules 27(a) provides that the Magistrate may accept the final report or direct further enquiry under section 156(b) of the Code or he may take cognizance under section 190(1) (b) of the Code. Rule 276(b) lays down that when a further enquiry is directed by the Magistrate the police officer after investigation may submit charge-sheet if the charge is proved or submit a final report. Rule 277(a) of the Police Regulations provides that if in any case in which the final report has already been made any information or clue is obtained, the investigation shall be re-opened, and clause(c) of the said rule says that if a fresh investigation leads to the conclusion of evidence sufficient to justify a trial a charge-sheet shall be drawn up otherwise a supplementary final report shall be submitted.

 

It is thus clear that the Police Officer has got powers to resume investigation and submit the charge-sheet if tiicprima facie case transpires against the accused, although final report Was earlier submitted in the case. Abdur Raman Vs. State (1977) 29 DLR (SC) 256.

 

—Rule 280 : Rules of the Police Regulations are administrative instructions. They are administrative instructions whose observance the police authorities should enforce on their sub-prdinates in order to foster respect for law and'as tending to the fair administration of justice. Panchu Vs. The State (1974) 26 DLR 297.         

 

42.     Circumstantial evidence Circumstantial evidence about the commission of murder—when leads to a sure conclusion that the accused committed the murder.

The fact that accused crossed the khal by the boat from the eastern bank to the western bank wearing the orange coloured panjabi (the panjabi and the blood-stained knife by which, according to ihc confessional statement of co-accused Zillu, the murder was committed) which was recovered from the house of M.R.where the accused used to reside and the fact that accused remained absconding since the time of commission of the offence for more than a year along with the inculpatory extra-judicial confession made by accused Zillu point irrcsistably to the conclusion that appellant with the help of accused Zillu committed the murder. Mobarak Hossain Vs. State (1981) 33 DLR 274.

 

Circumstances point clearly thai identification of the accused in the T.I.paradc not established. State Vs. Makb.ul Hossain (1974) 26 DLR 421.

 

—When not incompatible with the innocence of the accused charge fails.

Facts and circumstances disclosed in the , evidence are not incompatible with the innocence of accused Zubair and that the contrary view held by the learned  Tribunal  is  entirely  wrong and the explanation given by Zubair for his conduct is reasonably true and even if the prosecution is fully believed the guilt of Zubair as an abettor has not been established. State Vs. Makbul Hossain (1974) 26DLR421,

—Murder charge—No Eye-witness as to murder but strong circumstantial evidence goes to show that the accused is the person who committed the murder. TouhidAlam Vs. State (1986) 38 DLR 289.

 

43. Civil and  Criminal  Court

In seisin of the same issue—Both courts competent to proceed with the case. In the event of the same issue being taken to both Civil and Criminal Court, cither of the courts may dispose of the cases on merit expcditiously. There is no invariable rule that a criminal proceeding should be stayed pending the result of a civil litigation which deals with the same mailer. It must be assumed that each court must be allowed to proceed with the business on its file without intervention of any kind. Basir Ahmed Vs. The Slate (1967) 19 DLR (WP) 10.

 

44.   Cognizance

Cognizance of a case, when the Magistrate issues warrant of arrest against the accused person. The order-sheet shows that on receiving charge-sheet the learned Sub-Divisional Magistrate passed an order on May 10, 1978 for issuing warrant of arrest against some of the accused and for production of some of the other accused by the surety. With reference to this order of the Sub-Divisional Magistrate ihe learned Attorney-General correctly submitted that this order sufficiently indicates that cognizance of the case was taken by the learned Sub-Divisional Magistrate, and he was in seisin of the case. Kh. Ehteshdmuddin Ahmed Vs. Bangladesh (1981) 33 DLR (AD) 154.

 

—Chief Martial Law Administrator empowered to transfer a case from a criminal court to M.L.Court and it is not necessary that the case must be pending for trial after taking cognizance of it, etc. KkEhteshamuddin Ahmed Vs. Bangladesh (1981) ti DLR (AD) 154.

 

—The cognizance of the offence in the present case suffers from an inherent initial illegality as the schedule and the non-schedule offences were joined altogether to be tried by the Special Tribunal at one trial whereas the tribunal was constituted only to try cases mentioned in the schedule of the Special Powers Act and not for offences under the ordinary penal laws of the land. Offence for the misappropriation of goods delivered to the accused can not be equated with hoarding or black marketing of those goods. Talukder Abdul Aziz Vs. The State (1983) 35 DLR 127.

 

—If cognizance of a case had not been taken when the law changing the forum of trial came into force mere fact that F.I.R. had been lodged or charge-sheet had been submitted before the change of forum will not make the case triable under the repealed law. Special Tribunal took cognizance of the offence after it lost jurisdiction to try the same—Its order of conviction illegal. .Sakya Pada Barua Vs. State ' (1986) 38 DLR 86.

 

—The petition of complaint discloses no offence under the various sections of the Penal Code of which cognizance has been taken. Maqsood Alam Vs. K.M.J. Akbar (1987) 39 DLR 214.

 

45.  Commencement of Trial

When the accused brought before the Court is formally charged by the Court and he pleads guilty. Mohitullah Vs. The Stale (1983) 35 DLR 322.

 

46.   Commissioner

Dcra Ismail Khan was appointed to act as Commissioner under the Frontier Crimes Regulation—Anybody appointed thereafter, as Commissioner, Dcra Ismail Khan even after repeal of the Frontier Crimes Regulation can exercise his power under it in a pending proceeding which validly continued after repeal of the Regulation. Sona Vs. The State (.1970) 22 DLR (SC) 155.

 

47.  Committing  Magistrate's  duty

To formally communicate whether the accused is or is not in a position to engage a lawyer in his defence. A committing Magistrate must formally communicate whether the accused was represented by an advocate before him and is not in a position to engage his own lawyer for defence at the trial. If he does not do so, he shall be deemed to have neglected to perform an important part of his duty. Abdur Rashid Vs. The State (1975) 27 DLR (AD) 1.

 

48.  Communication  to the Court

Badrul Haider Chowdhury, J.—The Jessore High Court Division held that a telegram and an application to the, said Court through the Deputy Registrar of the Jessore High Court Bench constitute contempt of court.

 

Held : Communication to the Court through Registrar or Deputy Registrar is a normal course of business and in this case the sender of telegram is no less a person than the Deputy Attorney-General himself who is informing the Deputy Registrar about his illness and praying for time. Moazzem Hossain VS. State (1983) 35 DLR (AD) 290.

 

49.  Competency of the  police  officer

Question which rests on decision upon facts not having been raised before the Trial Court cannot be allowed to be raised for the first time on appeal before Appellate Division of the Supreme Court. The contention relating to the competency of the Police Officer, who investigated the case against the petitioner, was not raised cither before the Trial Court or before the High Court and since this contention touches upon a question of fact, namely, whether Investigating Officer had obtained permission from a Magistrate of the First Class.to investigate it is liable to be rejected as the factual position is not known. Jamadar Khan Vs. State (1975) 27DLR (AD) 35.

 

50.   Complaint

Person complained against not to take part in an enquiry u/s. 202 Cr.P. Code. The object of the Code of Criminal Procedure is to prevent the person complained against from harassment by being asked to appear or to submit explanation if in the opinion of the Magistrate no sufficient ground for issuing process against the person complained of has been made out. Md. Showkat Rabbani Vs. Md. Showkat Osmani (1983) 35 DLR 176.

 

—Grievance of the complainant party suffering wrong at the hand of the accused should have full scope to paresent its case. Azizur Rahman Vs. Syeedul Hague (1986) 38 DLR 4.

 

51.   Compromise

Compromise—Absence of any person in a compromise petition to a criminal proceeding does not affect the compromise. Abdul Gani Bepari Vs. Sahed All Majhi, (1969) 21 DLR 327.

 

52. Conduct of the accused

Conduct of the accused as regards his involvement in the murder by abetting the offence-Whcn held not sufficient to lead to the conclusion lhat he has abetted the crime. As regards the conduct of the appellant (i.e. the accused) the learned Deputy Attorney-General refers to the following:

 

(a)  That only she (i.e. the accused) knew that besides the victims all other inmates of the house including P.W.10 would be away at the relevant time.

 

(b) That she herself left the house at the relevant time leaving behind the two confessing accused and the victims.

 

(c) That the murderers would not dare to commit an offence in broad day light without her abetment.

 

(d)  That P.W.9 who worked as a cook had left the house on the previous day and the appellant might have arranged it.

 

(e) That she told her husband that at the time of occurrence she was in the house of one of his colleagues, viz. Dr. Rashid but P.W.7, the driver had dropped her in the house of one Mr. Rashid. Lutfun Nahar Begum Vs. The State (1975) 27 DLR (AD) 28.

 

53.   Confession

Accused made a confessional statement after being kept in police custody for 3 days—Such a confession is highly suspicious.  Prolonged police custody immediately preceding the making of confession is sufficient if not otherwise properly explained to brand it as involuntary. Safar AH. Vs. The Stale (1984) 36 DLR185.

 

—A conviction of the confessing accused based on a retracted confession event if uncorroborated is not-illegal, if the Court believes that it is voluntary and true. It may, however, be noted that a retracted confession has very little probative value against a co-accused. Retracted confession may be taken into consideration against a co-accused and may form the basis of conviction if there is substantial and credible independent evidence rendering corroboration both as to the crime and the criminal, because by itself a confession whether retracted or not is a very slight evidence against the co-accused. It cannot, therefore, be made the sole foundation of conviction. State Vs. Fazu Kazi (1977) 29 DLR (SC) 272.

 

—Confession retracted, does not derogate its value, if it is voluntary and true and can be the basis of conviction. Bhagaban Chandra Vs. State (1986) 58 DLR 374.

 

54.   Confessional   statement

Statement of a co-accused is not evidence because it is not made on oath and also not subjected to cross-examination—Confessional statement of a co-accused can not be basis of conviction of another accused. Emran Ali Vs. Slate (1985) 37 DLR 17.

 

—None of persons who made confessional statement and from whom the looted money was recovered appears to have been arrested. None of those accused who had confessed about their complicity along with others were put on T.I. Parade. It was about three weeks, after these accused persons had been arrested that they were produced before the Magistrate for recording their confession which they refused. All these show the utterly negligent and perfunctory manner in which the investigation was carried out by the Police Officer concerned. Enlargement of all the accused on bail and the manner in which the-investigation was carried out has no valid ground to allow the accused to remain on bail any further. Iftekhar Bhuiyan Vs. The State (1981) 33 DLR 13.

 

55.  Confiscation  order

After acquitting the accused of the offences of smuggling, the order of confiscation of goods cannot be maintained in law. Ramranjan Chowdhury Vs., Stale (1957) 9 DLR 54; (1959) PLD 375.

 

56.   Confrontation

Confrontation of a witness with his previous statement—When found basically wrong in the present case. Bangladesh Vs. Abed Ali (1984) 36 DLR (AD) 234.

 

57. Conspiracy and abetment

Since a person engaging in a conspiracy also abets, and an abetment is an offence it is also clear that abetment includes within it and extends also to abetment by conspiracy. Anwar Hossain Talukder Vs. Province ofEastPak. (1960) 12 DLR 615.

 

58. Conspiracy between husband and wife

Criminal conspiracy between husband and wife, is not an offence under English law and also where the English law is extended. Laila Jhina Vs. Queen (1958) 10 DLR 6.

 

59.   Contempt  proceedings

The Privy Council has not laid down that contempt proceedings are for all purposes criminal proceedings. State Vs. Abdul Rashid (1958) 10 DLR 568 ; 40 CWN 802 (PC) explained.

 

60.   Contravention  of law

Contravention of law, always effects the order but before it can be said to affect public order, it must affect the community or public at large. Mere disturbance of law and order leading to disorder is not necessarily sufficient for taking action for prejudicial activities. It must be a disturbance which will affect .public order and one within the scope at this Act. Ranabir Das Vs. Secretary, Ministry of Home (1976) 28DLR 48.-

 

61.   Conviction

Conviction, should be based on evidence and not on conjectures or probabilities

A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in given case. The finding as regards his guilt should be rested" surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilitcs cannot take the place of proof, if case were to-be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Supreme Courts, will be reduced to a naught. Md. Luqman Vs. The Stale (1969) 21 DLR (SC)461.

 

—Conviction of a person charged with committing an offence punishable with death without his being represented by a Lawyer is illegal—court's responsibility to sec that in such a case a lawyer is appointed to defend the accused. State Vs. Imdad All Bepary (1984)36 DLR 333.

 

—Conviction on the basis of oral evidence alone—Unsafe where circumstances combine to show that a false case has been concocted- to incriminate the accused in a criminal charge. Siraj Mia Vs. State (1987) 39 DLR (AD) 56.

 

62.   Conviction,  without  discussion   and consideration  of evidence—Cannot be sustained.

The judgment of the lower appellate Court is itself of a summary nature and docs not discuss any evidence. It is correct that exhibits A and B have not at all been considered by that Court. These are documents of vital importance and non-consideration of such documents cannot but be held to have

seriously prejudiced the defence. Ahmed All Vs. The State (1968) 20 DLR 303.

 

63. Conviction for abetment of murder without the charge of abetment.

A charge of murder was framed under section 302 read with section 34 P.P.C. against four persons and the court convicted all of them not on the substantive offence of murder but for abetment of murder though no charge was framed against them for abetting the commission of offence of murder.

 

Held : When a person is charged with substantive offence he cannot in all cases be convicted for abetment thereof. Every case musl depend upon its own facts and if the facts justify the conviction for abetment, though the person was charged with commission of offence itself, there is no bar in law to such conviction. Tamiza Khatoon Vs. The Stale, (1972) 24 DLR 57.

 

64.  Conviction  of several  accused persons

An Omnibus statements of the prosecution witnesses can not be sustaind. All Akbar Khan Vs. The Slate (1982) 34 DLR 94.

 

65.   Conviction  on   vague  allegations

Conviction on vague allegations not supported by any evidence showing guilt of the accused is bad in law.

 

It is regrettable that Chairman of a Labour Court who enjoys the rank and status of a Sessions Judge should have dealt with the matters in such a casual fashion. The conviction of the appellants has not been based on any evidence. Golam Kibria Vs. Khulna Bakery Sramik Union (1980) 32 DLR 138.

 

66.   Conviction—omission   to  record.

Conviction recorded under one of the two offences charged. Mere omission to record conviction or acquittal under the other offence not necessarily be deemed to amount to acquittal of that other offence. Appellate Court may convict and sentence the accused for such offence. (1955) PLD.

 

67. Conviction on matters not on record—illegal.

Some statements were incorporated in the petition of revision which was moved on behalf of " the accused before the High Court. These statements did not form part of the record of the case on which was based the conviction of the accused by the Trial Court. The learned Judges of the High Court in arriving at their conclusion that the accused was guilty of the charge he was called upon to answer, accepted and relied on those statements made in the petition.

 

Held.: The admission contained in the petition for revision in the High Court cannot be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the trial Court. Fazlul Quader Vs. Crown.(1952) 4 DLR(FC)104. .

 

68. Conviction recorded under one or two offences charged.

Mere omission to record conviction or acquittal under the other offence—not necessarily be deemed to amount to acquital of the other offence— Appellate Court may convict and sentence the accused under such offence. (1955) PLD (Sind) 230.

 

69.   Costs

It is very rare for the Privy Council to allow costs in a criminal matter and although in the particular case resort to Criminal Court was unjustified but having regard to the facts and in the circumstances of the case the prayer for cost was refused. S. Selvanaygam Vs. King (1952) 4 DLR (PC) 74.

 

Costs:No provision to award cost to a respondent by a court of appeal in a criminal appeal. There is no legal basis nor justification for a court to award costs in a criminal matter. Saiish Chandra Vs. Mainuddin (1977) 29 DLR 278.

 

70.  Counter cases

—Counter cases, arising out of the same occurrence should be disposed of by the same court simultaneously. Nezamat All Vs. The State (1969) 21 DLR 658.

 

71.  Court

Courts. All courts are subordinate to the High Court and the law laid down by this Court is binding on them. Mono Ranjan Dar Vs. State (1969) 19 DLR 522.

 

72. Court's approach

Court's approach, in regard to the entire evidence produced in .the case—Possibility favouring the defence rdacts in defence favour. In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view- reacts on the whole prosecution case. In such a case the accused is entitled to benefit of doubt. The State Vs. Mokshed All Khan (1968) 20 DLR 714.

 

73. Court's duty

Count's duty to insist upon presence of witnesses even though one is a police officer. In issuing process there cannot be any distinction between a public witness and that of a police official. In a case before the Magistrate both a public witness and the Investigating Officer remained absent. Warrant was issued to secure appearance of the former but no such coercive measure was taken in respect of the I.O.

 

Held : In issuing process there cannot be any distinction between a public witness and a police official. As a matter of fact the latter has to be more careful »in appearance in court. K.B.Ch. Ghulam Ahmad Vs. G.L. Whitelay (1970) 22 DLR (WP) 37.

 

74. Court's inherent power

Every Court, in the absence of any express provision in the Code for that purpose, must be deemed to possess, as inherent in its constitution, all such powers as are necessary to do the right and o undo a wrong in the course of the administration of justice. The principle flows from the maxim "quando lex aliquid alicui concedit concedera videtor id sine quo res ipsa esse non palest" which means when law gives a person anything it gives him that without which it can not exist. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.

 

75.  Court's  function  

Court's function is to see whether the accused is guilty of the offence he is charged with. Mizanur Rahman Zari Vs. State (1977) 29 DLR 167.

 

76.  Court  of revision

Sessions Judge while acting in his capacity as a court of revision can not convert himself in respect of the same proceeding into a Special Tribunal under the Special Powers Act. Function of the Sessions Judge as a court of criminal revision is completely different from that of Special Tribunal under the Special Powers Act. They are to be kept distinct and separate and if that is not done the Sessions Judge will be acting without jurisdiction for which his order cannot be sustained in law. Wahid Ali Vs. State (1980) 32 DLR (AD) 229.

 

77. Court's order

When a person ignoring a lower Court's order for appearance before that Court to answer certain charges made against him approaches the higher Court to quash the lower Court's order, the High Court will not in exercise of its discretionary power for quashing the lower Court's order, extend such relief to such person which will amount to encouraging defiance of lawful order of the subordinate Court. Mr.A.K.Khan Vs. The Chairman, (1973) 25 DLR 192.

 

78.   Court's   responsibilities

Conviction of a person charged with committing an offence punishable with death, without his being represented by a lawyer is illegal—Court's responsibility to see that in such a case a lawyer is appointed to defend the accused. State Vs. Imdad Ali Bepary (1984) 36 DLR 333.

 

79. Court set up under special statute

Court set up under special statute. Criminal Court set up under a special statute can exercise powers envisaged in the Code when the special statute expressly confers such power. Md. Sher Ali Vs. Special Tribunal. (1977) 29 DLR 145.

 

80. Court to see

Court to see what was the prevailing law on the subject-matter before the new law was enacted on the same subject. Abdul Halim Mollah Vs. The Member App. Tribunal (1982) 34 DLR (AD) 309.

 

81. 'Crime' and 'offence'

The word 'crime' and 'offence' are not necessarily synonymous. All crimes are offences but all offences are not crimes. The mere provision of punishment by way of imprisonment would not necessarily make an act criminal on that account. Haji Ahmad Vs. Province of East Pak. (1963) 15 DLR 424.

 

82. Criminal proceeding when starts

Criminal proceedings start after cognizance by court is taken. Proceeding before a Court starts when the Magistrate takes cognizance of an offence on police report or on complaint. Before such cognizance there is no proceeding that may be quashed under section 561 A, Cr.P.C. Process is issued only after taking of cognizance. In the 28 DLR case this Court considered as to when and under what circumstance jurisdiction under section 561A should be exercised and it was held that interference can be made even at the initial stage, when a mere perusal of the complaint would indicate that no criminal case stands against the accused. In that case there was no discussion as to when a proceeding starts before a court. When complaint is filed before a Magistrate, he may at once take cognizance and proceed under Chapter XVI of the Code of Criminal Procedure or he may simply direct the police to investigate under section 156(3) of the Code and in that case he does not take cognizance of the offence. Nasiruddin Mahmud Vs. Momtazuddin Ahmed (1984) 36 DLR (AD) 14.

 

83.   Criminal   prosecution

Criminal prosecution owing to refusal or failure by the agents or officers of private company to pay the oustanding dues, is not the proper remedy in law—Liability of this kind can be sought by resort to civil court. Mens rea must be established in case of criminal prosecution. A.F.M. Abul Hasmal alias Raja Mia Vs. tdris Ali (1983) 35 DLR 118 G.

 

84.  Cross  examination

Cross-examination indispensable to bring out desirable and real facts of the case—Cross-examination serves to impeach the credit of the witnesses cross-examined and to bring out the defence case. Mu.slimudd.in Vs. State (1986) 38 DLR (AD) 311.

 

—If a statement made in cross-examination contradicts the statement made in examination-in-chief, the entire evidence cannot be left out of consideration. Nurul Islam Vs. State (1988) 40 DLR 122.

 

—On 5.10.82 the accused was absent and also P.Ws were absent—The trying Magistrate expunged the depositions of these P.Ws. on the plea they were not present or tendered for cross-examination. Held : This is illegal. Moulana Ahmadullah Vs. The State (1986) 38 DLR 82.

 

85.   Custody

Custody—Question of custody loses its relevance when the girl concerned is found to be aged over 16 years—She neither being an accused nor a witness in the case cannot be held in detention under court's order but is free to go to any place of her liking. Ananda Mohan Banerjee Vs. State (1983) 35 DLR 315.

 

86. Custody of accused

After the recording of confession the accused person should be sent to judicial custody and not to the policc.Wazir Vs. State (1961) 13 DLR (WP) 5 : (1960) PLD(Kar) 674.

 

87.  Customs  Officer's  competency

Customs Officers do not possess sufficient competency to be entrusted with the duty where the law requires careful consideration of questions of discharging burden of proof. Mis. S.A. Haroon Vs. Collector of Customs (1959) }1 DLR (FC) 200 : (1959) PLD(SC) 177.

 

88. Defence and prosecution case

Defence and prosecution case to be placed side by side. It is necessary that the whole case, namely all the facts and circumstances adduced for the prosecution and the like facts and circumstances adduced for the defence should be placed side by side and after full consideration of their effect upon each other, if there still remains a reasonable doubt, the benefit of such reasonable doubt must go to the accused person. Sultan Muhammad Vs. Crown (1954) 6 DLR (FC) 28.

 

89. Defence plea

Accused's plea of accident—Respective cases of prosecution and defence to be considered in juxtaposition to each other and not in separate compartment. Md. Siddique Vs. Crown (1954) 6 DLR(FC)56.

 

—Where circumstances are enough to give rise to reasonable possibility that the defence plea might be true—Accused entitled to acquittal. Md. Siddique Vs. Crown (1954) 6 DLR (FC) 56.

 

90. Defence—theory of

The mere fact that a certain theory was not put forward at the time when evidence was recorded does not prevent Court from accepting it but before the Court accepts a theory which has no evidence to support it, there must be strong circumstantial evidence which makes it very probable. Feroz Vs. Stale (1956) 8 DLR (WP)128.

 

91.  Defence  version

To be placed side by - side with the prosecution version. It is necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extent to which a charge may be held to have been proved and to examine prosecution case side by side with the defence case, in reaching a decision on the accused's pleading. Safder All Vs. Crown (1953) 5 DLR (FC) 107 (108) (rt. hd. col).

 

92. Defence when raises doubt

Defence will discharge his burden if from certain circumstances a reasonable doubt could-be created in the prosecution case. Hajee Md. Kudratullah Vs. State (1975) 27 DLR 680.

 

93.   Delay

Unnecessary delay in holding trial resulting in keeping the accused in custody indefinitely, strongly deprecated. Riasat AH Vs. Ghulam Mohammad, (1970) 22 DLR (WP) 37.

 

—Question of limitation docs not arise in criminal prosecution—Merc delay is no ground to quash proceeding u/s 561A Cr.P. 'Code. Md. Shaflque Ullah Vs. The Slate (1981) 33 DLR 297.

—Delay of a few months (7 months in this case) in executing the sentence of death not a ground for commutation of sentence except where delay is extremely long. Slate Vs. PunardharJoydhar (1979) 31 DLR 312.

 

—Long delay in the disposal of a criminal case is a ground for quashing the proceedings.

The period between 1962 when the case was started in the Court till 1969 the accused petitioners had to undergo the ordeal of trials. The prosecution could not make up their mind as to what precise case could be brought against the petitioners. We find that for no fault of the petitioners and after having undergone the hazard of successive trials lasting for seven years the prosecution now wants to try them all over again. This is an abuse of the process of law and to allow this will be to give premium to the infirmity of the prosecution. Even if fresh prosecution is allowed it is hardly possible after so many deaths and the absence of the owner of the property to prove the case against the petitioners. Abdul Wadud Sikder Vs. State (1978) 30

 

—Delay in lodging FIR

3 days' delay in lodging FIR about the discovery of arms inexplicable and throws grave suspiction on the whole story of arms discovery as well as of Shahjahan's alleged escape—What they (RB) purport to have done demonstrates complete disregard of the law of the country. S.Mohsin Sharif Vs. Govl. of Bangladesh (1975) 27 DLR 186.

 

A delay of one year or so can not, however be treated as an extremely excessive delay.

—Excessive delay of 6 years be considered for commutation of death to life imprisonment—Court when called upon to commute death sentence on the ground of delay caused in executing it, must find why delay was caused. Nowsher All-Vs. Stale (1987) 39 DLR 57.

 

—Delayed by 2 years 7 months can not be treated as mitigating circumstances. Nowsher AH Vs. Stale (1987) 39 DLR 57.

 

—Delay of 2 or 3 years can not rank as mitigating circumstances. Nowsher All Vs. Stale (1987) 39 DLR 57.

 

94.   Delegation

It is not a correct proposition that the delegation of legislative powers by a legislature to an external authority is invalid or ultra vires only if it amounts to self effacement and abdication. Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258 (273) (l-h.Col)

 

95.  Delegation  of legislative power

A Legislature cannot delegate its powers of making, modifying, or repealing any law to an external authority. Delegating the power of extending the duration of an enactment is invalid, Gyanchandani Vs. Crown (1952) 4 DLR (FC) 238 (273-274,276,285)

 

—When an act says that detention shall continue in operation for a period of six months and further provides that the Provincial Government may by notification direct extension of the period for a further period not exceeding six months, if, in the opinion of such Government, it is necessary in public interest so to do.

 

Held : This amounts to delegating legislative power and it cannot be delegated to a body other than the one prescribed by the Government of India Act and is ultra vires the Provincial Legislature. (1951) 3 DLR 50 :1 PLR (Dae.) 290.

 

96.   Delegated   legislation

Any law passed on the basis of delegated legislation is ultra vires. A.K.R. Ahmad Vs. Govt. of E.Bengal (1951)3 DLR 50.

 

—The legislature cannot delegate its power to make laws to any other authority. A.K.R. Ahmad Vs. Govt. ofE. Bengal (1951) 3 DLR 50.

 

97.   Delivery of property

Delivery of property to any person on his undertaking to restore it when required by court. Properly ordered to be delivered to the person found entitled thereto includes the property exchanged or in converted form. Mohammad Hossain Khalifa Vs. Kalachand (1983) 35 DLR 229.

 

98.   Departmental  Action

In the face of specific allegation of rape and kidnapping against police constables, referring their case to higher police authority for departmental action is a wrong course. The specific allegations against the two accused persons (two police constables) being rape and kidnapping, the Magistrate who took cognizance of the case acted contrary to law in referring their case to the Superintendent of Police for taking departmental action against them instead of proceeding against them for their offence charged in accordance with law. State Vs. Md. Ostnan Ghani (1980) 32 DLR 298.

 

99.  Deprivation  of a  citizen's  liberty

Deprivation of a citizen's liberty must be in accordance with law. The police as guardians of law and order are now armed with extra-ordinary powers and if they behave in an irresponsible and unauthorised manner then the whole concept of personal liberty of the citizen will be jeopardised. The petitioner &s the citizen of a free country is entitled to the protection under the law of the land. It is the inalienable right of a citizen that he cannot be deprived of his life and liberty except in accordance with law. Badiur Rahman Vs. State (1977) 29 DLR ' 702.

 

100.   Detention

The appellant was put in detention under the Punjab Public Safety Act. The Senior Superintendent gave no reasons for his arrest nor indicated the nature of the prejudicial^:! and when questioned as a witness in Court as to the reasons which had satisfied him, he claimed privilege against disclosure under sections 123 and 124 Evidence Act.

 

Held : In the absence of any material on the record showing that the officer ordering the arrest acted in bad faith, the order was not illegal. Chirag Din Vs. Crown (1951) 3 DLR (FC) 156.

 

—When the previous order of detention is illegal, an order of extension of that detention will also be illegal. Sharifuddin Vs. Govt. of the Punjab (1954) 6 DLR (WPC) 96.

 

—Arrest and detention of a person cannot precede a reference to the Government but can"be made simultaneously with or after the making of the reference to the Government. Sharifuddin Vs. Govt. of the Punjab (1954) 6 DLR (WPC) 96.

 

—Order of detention not reviewed after expiry of six months —Detention illegal. Sardar AH Vs. Judges, High Court, Lahore (1956) 8 DLR (SC) 140.

 

—Detaining authority .to furnish the detenu with copies of detention orders. AM. Hashem Khan Vs. Crown (1954) 6 DLR (FC) 1.

 

—Renewal of order of detention—Government's honest opinion that, .if released, the detenu would engage himself in the same activity—Renewal justified — Only necessary to see that opinion was formed in fact and honestly and not that it was rightly formed. Nevertheless detenue must be afforded a locus penitenliae. 2 PCR 254.

 

101.  Detention of the members  of the Legislative   Assembly

Preventive arrest and detention of the members of the Legislative Assembly does not involve breach of the Parliamentary privileges and immunities which such members are entitled to. (1952) 4 DLR 472 : (1962) PLD (Dae) 481.

 

—The High Court is not competent to enter into the question of the satisfaction of the Governor; as regards the detention of persons under the statutory authority on the complaint that the detention was malafide, when there is order on the record showing, that it was made on the satisfaction of the Governor. (1952) 4 DLR 472 : (1962) PLD (Dae) 481.

 

102.  Detention  of girl  in  custody

She not being an accused and may at best be a witness, is illegal. Detention of the girl having been found illegal and it being further found that she was minor, the High Court passed the order that she should be made over to her mother. Kiran Bala Chowdhury Vs. State (1965) 17 DLR 544.

 

103.   Detention—legality   of

There is a material distinction between a fresh order of detention and an order of extension of detention. A fresh order of detention is not affected by the previous detention having been illegal, whereas an order of extension of detention becomes illegal if the detention, which extends it was itself illegal. A.M. Hashem Khan Vs. Crown (1954) 6 DLR (FC) 1 (16 l-h-Col).

 

104.   Digestion   of  food

State of digestion to ascertain the time of death—not always a reliable test. All Sher vs. State

(1966) 18 DLR (WP) 112.

 

105.   Discharge

Of an accused by court not a bar to his being punished by the concerned department under service rules—So also in case he escapes punishment under departmental proceeding, it is no bar to his criminal prosecution—Rule of double jeopardy not applicable in such a case. Bangladesh Vs. Md. Misfor All (1982) 34 DLR (AD) 304.

 

106.  Discrepancies  in  evidence

Discrepancies in evidence are not contradictions and do not affect the truth of what is stated in court. Aijuddin Matbar Vs. Fagu Matbar (1979) 31 DLR (AD) 101.

 

107.   Dispensation   of justice

Dispensation of justice law, not moral conviction, applies. Evidence, assessment of— Caution to be exercised. When human life pends in the scales, caution becomes the primary duty of any tribunal called upon to assess the evidence of the case, having regard to this statutory rule of caution. Alkas Mia Vs. The State (1973) 25 DLR 398.

 

108.   Dispute regarding land

Disputes regarding land should not be a subject-matter of special law. Dula Miah Vs. State (1977) 29 DLR 115.

 

—Allegation by the complainant that accused has no subsisting interest in the property in question thus raises a question of civil dispute, not a criminal issue. Maqsood Alam Vs. K.M.J. Akbar (1987) 39 DLR 214.

—Criminal Courts are not to be utilised for adjudication of civil disputes—Court strongly disapproves resort to criminal proceeding for harassing a person with motive of setting civil disputes. Maqsood Alam Vs. KM J. Akbar (1987) 39 DLR 214.

 

—Questions of fact are to be tried on evidence by the trial Court. Maqsood Alam Vs. KM.]. Akbar (1987) 39 DLR 214.

 

—It is common knowledge and experience that dispute over land is one of the causes of murder in this country. Muslimuddin Vs. State (1986) 38 DLR(AD) 311.

 

109. Disturbance of public order

Disturbance of public order as distinguished from breach of law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect'upon the life of the community in a locality which determines whether the disturbance amounts to a breach of law and order. Afazuddin Vs. Govt. of Bangladesh (1975) 27 DLR 496.

 

110.   Document

Documents which are produced by one party before a Court would be accessible to the opposite party. Denial of such right detrimental to the interest of justice. A.M.Hashem Khan Vs. Crown (1954) 6 DLR (FC) 1.

 

111. Double Jeopardy Autrefois Acquit

It is to be seen whether the accused is in jeopardy of being convicted of an offence for which he is tried or sought to be tried at a later trial. State Vs. Gopiwth (1977) 29 DLR 366.

 

112.   Double   punishment

Punishment for single offence which is punishable under two different statutes or two different sections of the same statute—sentences of punishment for the same offence under both the laws or sections, even though the sentences are to run concurrently, are illegal. In a case in which the same acts constitute offences under two different statutes or the same acts constitute offence falling within two or more separate definitions of law, the person so accused cannot be made to suffer separate sentences for each of the said offences, although he may be convicted for the same. The imposition of the separate sentences by each of these Courts is a contravention of section 71 of P.P.C. and amounts really to double punishment. The imposition of two separate sentences, even though they may have been made to run concurrently for each of the offences is illegal. Fazul Hoque Vs. State (1959) 11 DLR 316.

 

113.  Doubt in  the  prosecution  case

Defence version raised doubt in the prosecution case—Benefit of doubt goes to the accused. Giasuddin Mondal Vs. The State (1974) 26 DLR 227.

 

114. Duty of the court

In a criminal case it is the duty of the Court to review the entire evidence that has been produced by the'prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In such a case the accused is entitled to benefit of doubt. The State Vs. Mokshed All Khan, (1968) 20 DLR 714.

 

115. Emergency when  relevant

Emergency will be a relevant fact in determining the reasonableness of the act. Existence of the emergency will have a material bearing if the Courts are to decide upon the rcsonablcness of the action, for what is reasonable at the time of an emergency may not be reasonable in ordinary circumstances when the emergency has ended. The emergency will, therefore, be a relevant factor in determining the reasonableness of the act which, as we have already held, has to be considered in a limited sense by the Courts in the exercise of their power of judicial view. Government of West Pakistan Vs. Begum Agha Abdul Karim Sherish Kashmiri, (1969) 21 DLR (SC) 3.

 

116.  Emphasis on  minor discrepancies

Emphasis on minor discrepancies ignoring broad features deprecated. It is manifest that the learned judges were emphasising on minor discrepancies ignoring the broad features of the evidence and thus misdirected themselves in the assessment of the evidence of the case. Aijuddin Matbar Vs. Fazu Malbar (1979) 31 DLR (AD) 101.

 

117. Enforcement of the attendance Enforcement of the attendance in court of the Investigating Officer. The trial Court to take all practicable steps to secure the attendance of the 1.0. and if necessary, for the purpose to move the Police Directorate and the Government. After exhausting these steps, he will conclude the trial according to law. Stale Vs. Abdul Gazi (1981) 33 DLR 79.

 

—If the Police Officer who submitted the charge sheet docs not attend the Court on summons, warrant of arrest might be issued to enforce attendance. Solicitor, Govt of Bangladesh Vs. Md. Yasin Alt (1982)34 DLR 73.

 

118. Equal Treatment (High) official status is no ground to be dealt with in a manner other than what is provided by the Constitution declaring that all are equal before Law and entitled to equal treatment.

Under the Constitution all are equal before the law and are entitled to equal treatment under the law, but the entire sequence of events leaves an unfortunate impression that the accused because of his official status was treated differentially and shown undue indulgence and latitude by allowing him to get away with impunity for all that he had done. Bangladesh Vs. Khalilur Rahman (1980) 32 DLR 169.

 

119. Error apparent Error apparent on the face of the record.

High Court will interfere when a conviction is illegal on account of an apparent error. Bharat Tewari Vs. M.N.IIossain (1958) 10 DLR 481 : (1959) 9 PLR 276.

 

120.  Evidence

Body of the man murdered not found—When there is direct evidence that the deceased received injuries and died in consequence thereof discovery of the dead body is not absolutely necessary. Bishnu Das Gope Vs. The State (1981) 33 DLR 104.

 

—Evidence—only that part of a, witness's evidence to be excluded which is found false and not his whole evidence. There is no principle of law requiring that the evidence of a witness who has made contradictory statements in his cxamination-in-chief and cross-examination on a point should be excluded entirely from consideration. Law docs not require that the entire evidence of such a witness should be rejected. Evidence of such witnesses should be considered in the light of all circumstances on record and a court may accept that portion of the evidence which gets support from other reliable evidence on record. Nazrul Islam Vs. State (1975) 27 DLR 671.

 

—Only that part of a witness's evidence to be excluded which is found false and not his whole evidence. Nazrul Islam Vs. State (1975) 27 DLR 571.

—Prosecution has to establish by Definite and clear evidence that case for defence is untrue. Abdul Majid Vs. State (1987) 39 DLR 414.

 

—Questions of fact are to be tried on evidence by the trial Court. Mdqsood Alam Vs. K.M.J. Akbar (1987) 39 DLR 214.

 

—Relying on the reasonings given in the case reported in 29 DLR. (AD) 221 the established principle of law is that if part of the evidence of certain witnesses is disbelieved, the entire evidence is not liable to be discarded. Nurul Islam Vs. State (1988) 40 DLR 122.

 

—A newspaper is admissible in evidence without formal proof, yet the paper ip s.ofapto is not a proof of its contents. The learned Judge was absolutely wrong in taking into consideration, Ext. X which is the Daily Sangbad which published the story of the commission of murder by the accused persons. Numl Islam Vs: State (1988) 40 DLR 122.

 

—There is no rule of law that once a witness has been discredited on one point, no credit is to be given to another. If a natural witness is declared hostile, his evidence may be accepted if corroborated. The evidence of boatman P.W. 2 cannot be discarded. Md. AH Haider Vs. The Stale (1988) 40 DLR 97.

 

—When the evidence itself is inadmissible the question of its not being challenged or its remaining uncontradicted does not arise. Abdul Aziz Vs. The Slate (1981) 33 DLR 402.

 

—When the evidence of interested witnesses need not be corroborated due lo non-availability of disinterested witnesses. State Vs. Fazal (1987) 39 DLR (AD) 166.

 

—Discovery of body of person murdered not absolutely necessary—where there is direct evidence against the accused a lesser punishment is awarded instead of acquitting the accused altogether. State Vs. Fazal (1987) 39 DLR (AD) 166.

 

—No evidence that accused caused the death of the deceased—Where evidence that the accused forcibly took away the deceased at night followed by discovery of his dead body next morning not enough for conviction u/s 302/34 Penal Code cf.s. 364 of the Penal Code.) All that the prosecution has tried lo show through the evidence of a single witness, namely, P.W.I. is that deceased Durga Charan Dcbnalh was forcibly taken away at the dead of night by the accused-appellants and that on the following morning his dead body was found floating on the river. On such state of evidence the accused-appellants cannot be firmly said to be responsible for causing the death of Durga Charan Debnath and cannot be convicted of an offence u/s 302/34 of the Penal Code. Abdul Aziz Vs.The State (1981) 33 DLR 402.

 

—Discovery of body of person murdered not absolutely necessary—where there is direct evidence against the accused a lesser punishment is awarded instead of acquitting the accused altogether. State Vs. Fazal (1987) 39 DLR (AD) 166.

 

—Evidence that the accused looted others' property when not admissible.

The statements which P.Ws 1, 3, 4 and 5 have made about the accused are not statement of facts which they themselves saw. The statement that the accused used to loot properties of others with Rajakars or Albadrs is not evidence in the eye of law inasmuch as none of the witnesses mentioned as to whose properties the accused had allegedly looted and as to which Rajakars or Albadrs were with these accused. None of the P.Ws. mentions that he himself saw the accused looting the properties of anybody along with Rajakars or Albadars. The aforesaid evidence given by P.Ws. 1,3,4, and 5 is in the nature of hearsay evidence which is not admissible in evidence. Abdul Aziz Vs. The State (1981) 33 DLR 402.

—Raising doubts and suspicions regarding the evidence of prosecution witnesses is a well-known defence method but it must have some reasonable basis. Muslimuddin Vs. State (1986) 38 DLR (AD) 311.

 

—Evidence, Trial Court's appreciation of evidence where reversed.

It is true that a court of appeal should not lightly interfere with the appreciation of evidence by the trial Judge who is in the position to watch the demeanor of a witness which reflects on his credibility. However, if the appreciation is not based exclusively on the materials placed before the trial court, but on reasoning which is found to be faulty or or speculation and surmises then the court of appeal would be justified in forming its own view of the evidence.

 

For example : where a plea of alibi and evidence in support of that plea is found absolutely untenable on the recorded state of things the court of appeal will be entitled to set aside the verdict of the trial court which upheld the plea of alibi). Bhai Khan, son of Jalal Vs. The State, (1969) 21 DLR (SC) 64.

 

—Gun shot fired at close range : The evidence of the doctor P.W. 2 that he found multiple rounds of wounds with scorching around each wound is falsified by Modi's Medical Jurisprudence under the heading "Distance of the Fire Arms." AH Ahmed Vs. State (1986) 38 DLR 299.

 

—Evidence, principles for appreciation of evidence—Major factors in evidence should not be overlooked.

On the/ state of the evidence, it could not be said, that the two injuries on the deceased were not the result of lathi blows delivered by alleged assailants other than present appellants. Thai is a sufficient basis (which should not be overlooked) for giving to the appellants, the benefit of a doubt appearing on the face of the evidence, in respect of the charge of having caused the death of A. Taleb alias Talehar Vs. The Stale, (1967) 19 DLR (SC) 134.

 

121. Evidence at the appellate stage Evidence at the appellate stage after his acquittal.

An acquitted prisoner may give evidence against his co-prisoner even at the appellate stage. Such practice should not be encouraged except in the interest of justice and when strictly necessary. Such evidence is likely to be tainted with his vested interest he has in maintaining his acquittal. Md. Sarfaraz Vs. Crown (1953) 5 DLR (FC) 280 (287).

 

122. Evidence on record Of a number of witnesses mentioned in the complaint-petition some were not examined : Criterion is not that all witnesses should be examined but to see whether   the   prosecution   has   successfully established   its  case.

It is not necessary that all the witnesses cited in the petition of complaint should be examined. The important point for consideration is whether urjon the basis of the evidence on record the order of conviction can be supported or not. It is not always the number of the witnesses but the quality that counts in determining whether the prosecution case is acceptable or not. Md. Abdul Karim Mondol Vs. FazlulBari(1981)33DLR397.

 

123.  Existing  trade

Existing trade relation between India and Bangladesh. Goods of Indian origin cannot be assailed as smuggled goods, unless authority proves that the particular kinds of goods were prohibited. Giasuddin Mondal Vs. The State (1974) 26 DLR 227.

 

124.   Expunction

Objectionable remarks were made in the judgment of a Court against a person who was not a party to the proceeding nor was a withncss in the case. The High Court directs the expunction of such remarks. Director of Pak. Flotilla Co. Ltd, Vs. Abdus Salam (1963) 15 DLR 23.

—Judge who condemns a. man unheard acls unfairly—High Court Division has jurisdiction to expunge the adverse and disparaging remarks. M.S. Nurul Alam Vs. State (1986) 38 DLR 333.

 

—Expunction of unwarranted observation by Magistrate—High Court interfered and gave relief. 5. Wali Ahmed Vs. State (1965) 17 DLR 191.

 

125.  Extraordinary  direction Extraordinary direction to ftB by Army Official.

The extraordinary direction to the RB(Rakkhi Bahini) by the army official to make over arrested Shahjahan to the army once more demonstrates authoritarian attitude in complete disregard of the I   law. S.Mohsin Sharif Vs. Govt. of Bangladesh (1975) 27 DLR 186.

 

126.   Facts.

Facts emerging from the circumstances of the present case disclose highly unsatisfactory state of affairs—Compliance with the known procedure of | law completely disregarded—The man (said to be an accused in the present case) treated in a manner resulting ultimately, according to the defence, in his escape from the custody of JRB with the FIR lodged 3 days after his escape, with no timely report to the relevant authority about the aims said to have been discovered—all of which make a complete travesty of the judicial procedure by the personnel of the Armed Forces as well as by the Jatiya Rakkhi Bahini. S.Mohsin Sharif Vs. Govt. of Bangladesh (1975) 27 DLR 186.

 

127.   Factum  of a Statement

Factum of a Statement and truth of a Statement. A distinction has always been made between factum and the truth of a statement—the object of Ihe evidence is to recount certain statements made by another person necessary to introduce certain relevant facts or fact in issue which should otherwise be inadmissible as hearsay. If the object is to prove the truth of these statements there should be no objection in receiving them. S.M. Qamruzzaman Vs. State (1981) 33 DLR 156.

 

128.   Failure of the defence

Failure of the defence to prove a particular plea. Failure of the defence to prove a particular plea does not react in favour of the prosecution case which must stand on its own legs. Failure of the defence to prove a particular plea docs not help the prosecution in their case. The prosecution case must stand on its own legs. The  learned Magistrate has observed that since the defence failed to prove enmity between the complainant and the accused there is no reason to disbelieve the evidence of direct recognition of the accused. The observation is .wrong, for if the evidence as to recognition is not dependable, the charge against the accused must fail, whether they had or had not any enmity with the complainant. S.M. Farooqm Vs. The State (1976) 28 DLR 192.

 

129.   Failure  of justice

It being found that trial has been vitiated occasioning failure of justice, the only -order that could be passed is one of acquittal - It is wrong to send the case for rehearing. Nasiruddin   Vs. Appellate-Tribunal (1979) 31 DLR (AD) 310.

 

130.   Failure  to  comply

Failure to comply with accused's prayer to recall P.Ws. for cross-examination on material points by the newly engaged lawyer, after the withdrawal of the previous defence lawyer, causes prejudice to the accused. State Vs. Abdul Gani (1981) 33 DLR 79.

 

131. Failure to keep

Failure to keep in view the principle to be followed in undefended cases together with the instructions given in the Legal Remembrancer's Manual leads to miscarriage of justice and denial of fair trial. State Vs. Abdur Rahman (1975) 27 DLR 78.

132.   Falsity

Falsity appearing in the statements of accused person does not bar the allowance to them of an advantage that the law permits. Falsity in the statements of the accused person cannot be relied upon in support of the prosecution case. The visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case, whose acceptance must rest on a proper appreciation of the facts and circumstances proved. Sadiq Vs. State, (1967) 19 DLR (SC) 459.

 

133.   Findings

Findings when not based on evidence, but on conjecture is liable to be set aside. SyedAli Vs. The State (1974) 26 DLR 392.

 

134.  Firing

Plea of obedience to the order of the Superior It was contended on behalf of the accused Jahir Mia that the said accused fired in obedience to the order of his superior and as such he was not guilty of the charge of committing any offence.

Held : The plea of obedience to order of the superior is of no avail to the appellant. It might be a defence in tfie army, but under the civil law no such defence is available to a person who knew that the order was clearly illegal and not justified by the circumstances. Jahir Mia Vs. State (1961) 13 DLR 857.

 

135.   F.I.R.

An act improper or bad not necessarily criminal—Allegations as made in the FIR or charge-sheet do not make out a case of criminal offence. M. G. Towab Vs. State (1982) 34 DLR 371.

—F.I.R. cannot contradict prosecution witnesses evidence tendered in court. Aijuddin Malbar Vs. Fagu Matbar (1979) 31 DLR (AD) 101.

 

—An accused cannot be convicted on the basis of F.I.R. Justice goes by default of legal evidence for securing conviction. Murder of married woman in husband's house— extreme paucity of incriminating evidence because of the reluctance of the available witnesses to state real facts with the result that culprits go unpunished. Noor Mohammad Vs. The State (1986) 38 DLR 111.

 

136.  Food  digestion

Digestion of food—State of digestion to ascertain the time of death—not always a reliable test. Ali Sher Vs. State, (1966) 18 DLR (WP) 112,

 

137. Forged document

Where a copy of forged document was produced in evidence earlier in point of time in a different Court at Land the original forged document was subsequently produced in another Court at S, the fact that the Court at L did not make a complaint under section 195(1) (c), Cr.P.C. does not bar the prosecution. Saumukhsing Vs. King (1951) 3 DLR (FC) 3.

 

138. Forum  for trial

Forum for trial of an offence Forum for trial of an offence when the offence charged fell to be tried under the provision of the Criminal Procedure Code it cannot be tried under a Special Act (Special Powers Aa) which came into effect after the commission of the offence. Forum for trial must be one as provided by the Criminal Procedure Code. Mr. Mosharraf'Ilossain Vs. Stale (1978) 30 DLR. (SC) 113.

 

139.   Fresh   complaint

Fresh complaint against the same accused after acceptance of final report, though legally permissible, yet must be entertained in exceptional cases showing manifest illegality of other sufficient causes. Abdus Salam Master Vs. State. (1984) 36 DLR (AD) 58.

—Criminal proceedings started on a complaint which did not contain any definite accusation. A.Kader Chowdhury Vs. The Slate (1984) 36 DLR 148.

 

—Fresh complaint is cntertainable with regard to a case on the same allegation when the case earlier is dismissed or discharged; though 'revival' of the same case may be a question at issue. A distinction has been made between the same proceeding revived after 'dismissal' or 'discharge', and the entertainment of a fresh complaint or fresh police report instead of revival of the previous proceeding. In the case of revival, the question of the Magistrate becoming functus officio may arise, but no such question can arise if a fresh complaint is entertained though on the same allegation. This view has also been taken by the Pakistan Supreme Court in the case of Abdul Hossain Sana Vs. S walal Agarwala, 14 DLR 96. Abdus'Salam Vs. The Stale, (1984) 36 DLR (AD) 58,

 

—Cognizance taken in the self-same case or upon a fresh complaint valid in law and is not second prosecution—A fresh prosecution on the same facts after discharge of the accused, not always illegal, if it is not revival of the same proceeding.

 

When a second prosecution is launched on the same facts after the discharge of the accused persons, it cannot be said that those proceedings arc always entirely without jurisdiction. It depends upon whether the second prosecution is in fact a revival of the same proceedings or is based upon a fresh complaint. If it is in fact the revival of the same proceedings, then clearly the prosecution is without jurisdiction : but if the second prosecution is based on a fresh complaint, it will not be without jurisdiction, because that Magistrate docs not preside over the same proceedings. He takes cognizance of Ihcsahic offence but in a different case altogether. (In the instant case, the complainant Khorshcd Alam initiated a fresh proceeding against the petitioners and 15 other accused persons on a fresh complaint. This proceeding will not mean a revival of old proceedings at all.) Fresh,complaint against the same accused permissible in appropriate case. Abdus Salam Easier Vs. The State (1983) 35 DLR 140.

 

—Fresh complaint may also be entertained if Ihc order of dismissal of the previous complaint had been passed on a misunderstanding of the scope and extent of enquiry under section 202 Cr.P.Codc. Abuds Salam Vs. The State (1984) 36 DLR (AD) 58

 

140. Fresh Examination  of Evidence

If the police after investigation submitted charge-sheet against the accused, the High Court will not quash the pending proceeding on a fresh examination of evidence led. Abdul Mannan Sarder Vs. The State (1985) 37 DLR 38.

 

141. Fresh trial

Fresh trial of the accused is improper where the accused has suffered from incompetent prosecution for no fault of his own but for the fault of the prosecution. Md. Shafiullah Vs. The State, (1967) 19 DLR 225.

—Fresh trial, when accused underwent a prolonged trial, not proper. Aminul Hoq Vs. Crown (1951) 3 DLR (FC) 518.

 

142.   Fugitive.

—A Fugitive with death sentence submits a petition through an attorney for .special leave to appeal to the Federal Court, but Himself avoids appearance.

 

Held : The Federal Court will not entertain the petition. Chand shah Vs. Crown (1956) 8 DLR (FC)24.

~ A fugitive from justice (so long as he remains beyond the reach of the court) is not entitled to any relief. Khalilur Rahman Vs. Stale (1981) 33 DLR 12.

 

 

143.  Function  of the  Sessions Judge

Function of the Sessions Judge as a Court of criminal revision Sessions Judge while acting in his capacity as a court of revision can not convert himself in respect of the same proceedings into a Special Tribunal under the Special Powers Act. Function of the Sessions Judge as a Court of criminal revision is completely different from that of Special Tribunal under the Special Powers Act. They arc to be kept distinct and separate and if that is not done the Sessions Judge will be acting without jurisdiction for which his order can not be sustained in Law. Wahid Ali Vs. State (1980) 32 DLR (AD) 229.

 

144.  Functioning  of the Jatiya  Rakkhi Bahini

J.R.B. too acted equally in an irresponsible manner showing scant regard to or, as if, law did not exist.

The functioning of the Jatiya Rakkhi Bahini in connection with this case, to which our attention has been drawn, is also contrary :io what is required under law. The absolutely unorthodox manner in which actions have been taken by the Rakkhi Bahini has surprised us. On an examination of the various provisions of the aforesaid Order it appears to us that it is extremely doubtful that the functioning of the Jaliya Rakkhi Bahini without any rules framed under the said Order has the necessary legal foundation. S1. Mohshin Sharif Vs. Govt. of Bangladesh (1975) 27 DLR 186.

 

145.   Functus   officio

It is a settled law thai before signing of the judgment the judge docs not become funclus officio and the judgement can be reviewed. All Mia Vs. Sultan Ahmed (1981) 33 DLR 218.

 

146. Further Enquiry

Sessions Judge having completed the trial and fixing the date of judgment cannot direct for further enquiry under the Provisions of Criminal Law Amendment Act, 1958. Kazi Nurul Huq Vs. Slate (1983) 35 DLR 352.

 

147.  Government's  dealing

Government's dealing with the life and liberty of the citizens in an irresponsible manner-condemned. Taskinuddin Talukder Vs. The State, (1973) 25 DLR 174.

 

148.  Government  lawyers

Government lawyers should not appear for private party in a case in which Government is a party.

It is not desirable practice for the government lawyers to appear for private individuals in a case where the government is also a party. More so because in criminal case, the interest of a private party and the Stale may not always be the ,samc. Md. Mustafa Anwar Vs. The Stale (1983) 35 DLR 165.

 

—Depuly Altorney-General cannot appear on behalf of a private parly, in a crmiinal case when he • is already appearing for the State in the same case, neither can he ask ihe Court to accept an affidavit sworn by a private party. Md. Mustafa Anwar Vs. The State (1983) 35 DLR 165.

 

149. Government orders

Government orders an enquiry to be held by a Magistrate in pursuance of a petition of complaint made by the accused in a case which is sub judice before a competent court which has taken cognizance of it on the charge-sheet submitted by the Police after invesligalion inlo ihe offence. Nothing however should be done which can disturb the free course of juslice. Shaikh Keramat All Vs. Bangladesh (1979) 31 DLR 346.

 

150.  Government  publicity  machinery

Government publicity machinery lo give undue publicity to any individual, disapproved. The publicity machinery of the government should nol be involved in giving any unusual publicity of the normal aclions of law-enforcing agencies of the Government with reference to any particular individual. It may have a tendency of drawing undue public attention to a relatively routine matter, creating a public furore over a private individual. With a view lo forestalling even a remote probabilily of causing even a minor impediment in Ihe discharge of ihe due process of law, such measures, in fulurc should in all possibility be avoided. Golam Kabir VS. Govt. of Bangladesh (1975) 27DLR 205.

 

151.  Government  servant

Goycrnmcnl scrvanl—Medical certificate from the Authorised Medical Attendant is necessary when a government official wants his treatment to be done at the Government expense. No such certificate is required when a Government official's treatment is done by a private practitioner. Moazzem Hossain Vs. State (1983)35 DLR (AD) 290.

 

152. Government when  a party.

Government when is a party to a proceeding in a Court of law it has no better status and rights than any other party. State Vs. Edward Snelson (1961) 13 DLR (WP) 14.

 

—In an action taken in a Court against a Government servant, government itself docs not take any part—Govt. applying to be made party therein is unusual. Slate Vs. Edward Snelson (1961) 13 DLR (WP) 14.

 

153. Grant of leave of absence

Bench has no power to grant leave of absence from office duties to a Government officer like the Assistant Attorney-General. The court may allow, a state lawyer (or for that matter, any lawyer) to remain absent from a particular case but the court has got no power to grant leave of absence from office duties of the Assistant Attorney-General. That power lies only with the Government. Moazzem Hossain Vs. State , (1983) 35 DLR (AD) 290.

 

153A.  Grievance

Grievance of the complainant parly suffering wrong at the hand of the accused should have full scope to present its case. Azizur Rahman Vs. Syeedul liaquc (1986) 38 DLR 4.

 

154.  Hearsay evidence

Though hearsay evidence 'is not evidence of the fact deposed to yet in certain circumstances it can be looked to for some collateral purposes and cannot just be shut out S.M. Qamruzzaman Vs. Slate (1981) 33 DLR 156.  Hearsay evidence—its admissibility or otherwise—Statement made quite apart from   its   truth   is   relevant   for   certain purposes.

 

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible-when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made quite apart from its truth is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made." Under the Evidence Act, hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay but docs not necessarily preclude as to a statement having been made upon which certain action was taken and certain results followed. S.M. Quamruzzaman Vs. Slate (1981) 33 DLR 156.

 

155. High  Court of Dacca

Practice in matters coming under section 439 Cr.P.C. Practice of the Dacca High Court not to hear an application under section 439 Criminal Procedure Code, unless the appellant had surrendered. There is a long established practice of the Dacca High Court as well as its predecessors, that the High Court will refuse to entertain or hear an appeal when the appellant has not surrendered in accordance with the sentence passed on him. Babu Lai Agarwalla Vs. Slate (1961) 13 DLR 1; (1961) PLD (Dae) 523.

156. High Court's orders

High Court's orders are to be complied with by the Subordinate Courts— Contrariness deplored.

We have on some other occasions also noticed an unfortunate tendency among some of the judges of the Courts below to circumvent and by-pass an order passed by the High Court. Even if concurrent powers under the law have been given to the Sessions Judges in bail and other matters, they should stay their hands when the matter is in seizin of the Superior Court. Bangladesh Vs. Khalilur Rahman (1980) 32 DLR 169.

 

157. High  Court's powers

High Court's powers of superintendence remained in tact except for a short period when First Great War was waged and Mahatma Gandhi started Civil Disobedience Movement for liberty-Pakistan's belated constitution conferred though rather lately this superintendence power—Ups and down of Pak. Constitution—Arrival of 1971 with chaos and confusion—iDark, as well as brightest, periods of our national life—Emergence of Bangladesh as Independent Sovereign State— Bangladesh Constitution promulgated on 16.12.72. Survey shows that except under the martial law regimes during Pakistani rule High Court retained its supervisory power over all subordinate courts. A.TMridha Vs. The State, (1973) 25 DLR 335.

 

158.   High  Court's superintending  power

High Court's superintending power—embodied in sections 535 & 439, Cr.P.Code.—Arrest under Artiple 10 of P.O. 50 can only be when materials gathered during investigation throw reasonable suspicion, and not otherwise—Courts to see if provisions of the law (P.O. 50 of 1972) have been strictly followed and to step in, whenever necessary, to prevent abuse of court's process and failure of justice. A.TMridha Vs. Slate (1973) 25 DLR 235.

 

159.   High-handedness  of Govt. official

A citizen can be deprived of his liberty strictly according to law—High-handedness on the part of Govt. Officials is severely condemned. It is the inalienable right of a citizen that he can not be deprived of his life and liberty except in accordance with law. In the instant case, an innocent man was made the victim of illegal detention, insults and harassment due to the high handcdncss and arbitrary actions, of responsible public servants who behaved like masters and not servants of the public. In the interest of justice and fairness appropritc steps should be taken by the Government to see that the good name of the Government is not allowed to be tarnished by such irresponsible officers and such high handcdness is not repeated against a citizen, the protection of whose life and property is the sacred duty of the State, Mainuddin Khan Vs. State (1978) 30 DLR 30.

 

160.   Highly   injudicious  order

Highly injudicious order passed by Trial Magistrate. It is a matter of surprise to find that the entire quantity of gold was ordered to be returned to the accused by the learned Magistrate inspite of his clear finding that gold was recovered from different inmates, of the 3-sloricd building and not from the accused alone. The learned Magistrate in his judgment also expressed surprise that 99 tolas of gold ornaments were returned to one Dilip, the son of the accused. In spite of the finding, we wonder how could the entire quantity of gold seized be directed to be returned to the accused alone. We, accordingly, direct that the seized gold be kept in proper custody till the disposal of the present criminal case against the accused. State Vs. Gopi Nath Chose. (1977) 29 DLR 366.

 

161.   Identification

There is yet another proposition which can be affirmed, that for identification purposes in a criminal trial the event with which the words sought to be proved must be so connected as to form part of res gestae, is the commission of the crime itself, the throwing of the storie, the striking of the blow, the setting fire to the building or whatever the criminal act may be. Lejor Teper Vs. Queen (1954) 6 DLR (PC) 604.

—Identification—Evidence as to—The evidence of identification is not safe to rely on. 1956 PLD (Lah)157.

 

Value of—The Sessions Judge is guilty of a grave error when he fails to caution the jury that the value of identification by a witness in the Court of Session that the property was the stolen property is considerably weakened in view of the fact that the witness was never called upon to identify the said property when they were placed in a test identification parade nor was the witnesses asked to identify them in the Court of the Committing Magistrate. Jamsher Barker Vs. Crown (1952) 4 DLR303;2PCR158.

—Principle of identification of an accused by witness in dock when there was a previous T.I. parade—Circumstances when a witness cannot possibly identify the accused in clock stated. Ratio in AIR 1925 (ALL) 223 approved. Failure of witnesses "to identify accused persons who are strangers to the witnesses—Identification if made without naming them—Court's duty to shift evidence in that circumstance—Any statement, express or implied, made by a witness identifying the accuseds but without naming them, if qualifies as substantive evidence—Test of. Ratan Kha Vs. The State (1988) 40 DLR 186.

 

162. Identification   of foot-prints

This science is at an elementary stage—much reliance cannot be placed on its result. The science of identification of foot-prints is at i elementary stage and much reliance cannot be placed on the result of examination of foot-prints. The track evidence by itself would not be enough before a Court to connect an accused with the crime. Even if resemblance is shown between the two foot: prints, there has to be other incriminating facts and circumstances to prove the guilt of the accused beyond reasonable doubt. Shafizuddin alias Shaha Vs. The State (1983) 35 DLR 326.

 

163. Identification  Parade

Memorandum of test identification parade is not Ihe evidence on which a conviction can be based. It is only a previous statement made by the witnesses which can be used to corroborate them. Md. Yaqub Vs. Crown (1955) 7 DLR (WPC) 39.

 

—Identification parade—Memorandum of, prepared by Magistrate—Only of corroborative value—Cannot form basis of conviction. 7952 PLD (Lah)55.

 

164.   Indication

Arms carried serves as an indication, what kind of offence is likely to be committed. A choice of arms by the members of an unlawful assembly is an important factor to be taken into consideration to come to the finding of fact as to the l,ype of opposition expected and the type of possible injury to be inflicted by the members in case of opposition. Anil Krishna Vs. State (1981) 33 DLR 334.                  

 

165.   Ingredients

Ingredients to prove for substantiating a charge of rioting. For substantiating a charge of rioting the prosecution has first to prove the existence of any unlawful assembly with a common object as defined in section 141 of the Penal Code and then to prove that one or more members of the assembly used violence or force in prosecution of the common object. Stale Vs. Md. Osman Ghani (1980) 32 DLR. 298.

 

—Basic ingredients of offence of criminal breach of trust have not been proved. Abdul Majid Vs. Stale (1987) 39 DLR 414.

 

166.   Initial   complaint

When the initial complaint and charge against the accused disclosed an offence under section 379 of the Penal Code, his conviction under section 427 cannot be maintained. Tarab All Vs. Jafaruddin (1954) 6 DLR 32.'

167.  Innocence

Presumption   of In estimating the weight to be attached to specific conduct in given circumstances, any reasonable explanation which favours the presumption of innocence must be considered with the same care as other explanations having the effect of implicating the accused in a crime. Sultan Muhammad Vs. Crown (1954) 6 DLR (FC) 28.

 

168.   Insanity

Mere mental abnormality or even impulsive insanity by itself without establishing that the culprit was incapable of knowing the nature of the act he was doing, not an extenuating circumstances. Mohammad Shaft Vs. State (1962) 14 DLR (SC) (269): (1962) PLD (SC) 472.

 

—Defence plea of insanity—When on question of insanity evidence of local witnesses arc divided it is incumbent upon the court to sec if there were other materials in the case to resolve the difficulty— Non-examination of material \vitncsscs not only prejudices the accused but also causes a failure of justice.

. The accused was put on trial under sections 302 and 307 P.P.C. and was sentenced to death by the trial court. The defence did not challenge the occurrence, but pleaded insanity. Some P.Ws. said that the accused was insane on the date of occurrence while others asserted that he was normal. The order-sheet of the lower court shows that the Jailor, Civil Surgeon and others had submitted reports supporting the defence plea. But these material witnesses were not examined and their reports were not brought on record.

 

Held : Non-examination of those material witnesses and non-production of their reports have not only prejudiced the accused but have also caused a failure of justice in the case. Shiraj All Vs. Slate, (1972) 24 DLR 69.

 

169.   Inspection Inspection of the scene of occurrence

View (Inspection) of the scene of occurrence by jury—A simple view by a jury is a view in which no witnesses arc present and such a view is quite proper—but a view in which witnesses are present to explain the things they deposed to but in which the judge was not present, vitiates the trial. Tameshwar Vs. Queen (1957) 9 DLR (PC) 688.

 

170.   Interference  in  revisional application.

When any question of law arises—High Court must interfere in revisional application. The offence was committed under the Displaced Persons (Land Settlement) Act 1958 but the accused was prosecuted under the Displaced Persons (Compensation and Rehabilitation) Act 1958. High Court having refused to interfere with the revisional application, the Supreme Court on appeal

 

Held : When the Magistrate erred in law in issuing the process, it is for this reason alone that the order of the High ^ourt dismissing the appellants' revisional application cannot be sustained. Mohammad Sadiq & other Vs. The State, (1969) 21 DLR (SC) 342.

 

171.  Interference with an order of acquittal.

It must not be understood that the Supreme Court has no jurisdiction to interfere with an order of acquittal by a High Court or any other Court otherwise than upon appeal by the State. There arc circumstances in which such an appeal may be clearly competent, e.g. where the prosecution was commenced and continued upon a private complaint. The Supreme Court will not, in a proper case, hesitate to interfere where the circumstances indicate that there has been a grave miscarriage of justice, by some disregard of the form of legal process, or by some violation of the principle ot natural justice. Md. Ashiq Vs. Allah Baksh (1964) 16 DLR (SC) 55.

 

172. Interference with  even flow of justice

Interference with even flow of justice by persons highly placed. A certificate granted by a Senior Professor of Surgery, another certificate granted by a Member of the Parliament and a post editorial in a leading daily newspaper, all of which constitute a clear interference with the course of justice and all concerned would be well advised, in the interest of justice, to help stop this alarming trend and allow the course of justice to run without any interference. Abul Bashar Talukdar Vs. Stale (1980) 32 DLR 182.

 

173.  Investigating   officer

Investigating officer Non-examination of—­Failure by the prosecution to examine the investigating officer is a serious defect which cannot be cured by a direction to the jury that presumption against the prosecution shoiild be drawn on account of this omission. A.K.M. Reza Vs. State (1957) 9, DLR 594.

 

—Investigating Officer not having been examined in court—adverse inference cannot be drawn therefore, when the defence could not draw the attention of any P.W. to any contradiction between their statement u/s. l6l Cr.P.C. and their evidence in court. Bhagaban Chandra Vs. State (1986) 38 DLR 374.

 

174.   Investigation

Investigation, into an offence under the Prevention of Corruption Act (bribery and criminal misconduct) commences when steps towards entertainment of the offence and the culprit thereof arc taken—Taking an informant in a corruption case to a Magistrate for having his statement recorded and then proceed to lay trap violates the provision of Chapter XIV of Criminal Procedure Code. Ghulam Mas Vs. The State, (1968) 20 DLR (WP) 48.

 

—Careless investigation by the Investigating Officer has been held as the real cause for failure to detect the culprits. Noor Mohammad Vs. The Slate {1986)38DLR 111.

 

—Concrete suggestions offered to improve the position during the stage of investigation as may help better administration of law. Noor Mohammad Vs. The Stale (1986) 38 DLR 111.

 

—Real authorities have to exert themselves to find out real solution as to the matter of investigation by introduction of correct methods. Noor Mohammad Vs. The Slate (1986) 38 DLR , 777.

 

—Police   indifference   in   the   matter   of investigation—Courts obliged just to hold an useless trial which is meaningless and court's helplessness   in  such  state  of affairs.  Noor Mohammad Vs. The State (1986) 38 DLR 111

 

175.  Irregularity

Accused convicted on two different penal sections but the order said nothing under which section the sentence was passed. The irregularity cured by section 537. Md. Abdul Karim Mondal Vs. Fazlul Bari (1982) 34 DLR 303.

 

—Trying Magistrate convicted the accused under two sections of the Penal Code but in passing only one sentence, did not say under which section it was passed—Irregularity curable (under sec. 537 Cr.P.Codc). Md. Abdul Karim Mondol Vs. Fazlul Bari (1981) 33 DLR 397.

 

176.  Judge's  function

Judge's function as a court in relation to matters wherein the Government is interested. Per Munim, j.—Judges have no malice against a litigant, far less when it is the government, but one thing which requires to be remembered is that judicial considerations are bound to be, and in fact, differ from those which arc executive.

 

This, however, must not be supposed to mean that Judges would ignore all that lie behind or go to the making of an executive decision, nor must it be thought that there is no need for judicial self-restraint when the Judges approach to consider the legality or propriety of an executive action. While agreeing with the broad proposition that interim order should not issue in each and every matter thereby restraining the hands of the executive we cannor but disagree that such order should never issue or there would be no occasion at all to issue an interim order. Lutfur Rahman Vs. Election Commissioner.(1975) 27DLR 278.

 

177. Judgment

Judgment of the High Court-High Court judgments binding on all subordinate Courts under its authority and would only yield to the rulings of the Federal Court or the Supreme Court. Is Hague Mia Vs. Abdul Malek (1958) 10 DLR 366.

 

—Criminal appeal before High Court—. Judgment may be pronounced by another Judge in the absence of the Judge who wrote the Judgment. 1957 PLD(Lah) 903.

 

178.  Judicial  courtesy

The Magistrate would have been well advised to have added an expression of respect for the views of the Sessions Judge, from which he was differing. The obligation to do so is not a legal one, but is not to be regarded as any the less real for that reason. It rests on a long tradition of judicial courtesy. Abdul Haye Khan Vs. State (1958) 10 DLR (SC) 179.

 

179.  Judicial  discretion

In a case under section 302 of the Penal Code, where the normal sentence is death, it was all the more necessary that the newly engaged lawyer should have been given all reasonable facilities to conduct the defence case properly. By refusing to allow the prayer of the defence lawyer, the learned Additional Sessions Judge has exercised judicial discretion erroneously to the prejudice of the accused persons in their defence. Retrial is not intended to enable the prosecution to improve upon the evidence led at the original trial. State Vs. Abdul Gazi (1981) 33 DLR 79.

 

180.  Judicial  function

A person who can commit person to custody performs a judicial function. High Court averse to interfere where a court finds a prima facie case against a person. A.T.Mridha Vs. The State, (1973) 25 DLR 335.

 

181.  Judicial  notice

Judicial notice "of a document—not brought on record. It is not open to a Court to base its findings

on the assumption that it took judicial notice of certain paper which has not been legally brought on record. Dr. Jamshed Bdkth Vs. Amenur Rashid Chowdhury, (1968) 20 DLR 55.

 

-—Taking judicial notice of fact having no evidence in support.

It is not open to a Court to base its finding on the assumption that it look judicial notice that a certain thing was not ordinarily used at the time of its recovery, without there being any evidence in support of such assumption. Fazlul Qader Chowdhury Vs. Crown (1952) 4 DLR (FC) 104.

 

182.  Judicial  power

Judicial power of the Superior Courts. Judicial power of the Superior Courts can never be taken away. The power exists as long as the court exits. This power is available even where the jurisdiction of the Superior Courts have been barred, Judicial power of the High Court cannot be taken away by Martial Law Regulation No.l which has been passed in pursuance of the proclamation by saying no judgment, decision or sentence of a Martial Law Court shall be called in question in any manner what-socvcr including the Supreme Court, Haji Joynal Abedin Vs. Slate (1978) 30 DLR 371.

 

183.  Judicial  statement

Incriminating portion of the judicial statements were corroborated by other evidence on record. The very admission of presence on the scene of occurrence indicates that the accused had complicity in the crime and the murder took place in furtherance of their common intention. The State Vs. Badiiuzaman. (1973) 25 DLR 41.

 

184. Judiciary and Police Judiciary and police, function of

It is of the utmost importance that the judiciary should not interfere with the police in matters which arc within their province, as the functions of the judiciary and the police are complementary and not voverlapping. Md. Abbas Vs. Crown 2 PCR 28.

 

185.   Jurisdiction

(Court's, jurisdiction to decide which offence it can try). It is true if the Sessions Judge has Jiot been empowered to try cases which fall under Special Powers Act in that case the Sessions Judge cannot try that case. It is up to the Court to decide which of the offences he has got jurisdiction to try. Except what has been provided in the Cr.P.C. and the Evidence Act, the trial Court has no power and jurisdiction to treat any other oral evidence except the one made before it by witnesses, to be ireatcd as evidence in the case.

 

Pendency of a case at the stage of investigation is not the same thing as a pendency of a case after the start of the legal proceeding which commences after the cognizance to the offence is taken up. In the present case as it was not pending on 23.8.77, its trial under the Special Powers Act was without jurisdiction and the only court which can try the case is the court as provided under Cr.P.Code. Kazi Md. Wahidunnabi Vs. Abdus Saltar (1984) 36 DLR 200.

 

—Specifically jurisdiction should be.conferred on the appellate court in case the legislature intended thai there shall be an appeal against the order of acquittal—Where none so provided no appeal against acquittal would lie. Abdul Halim Mollah Vs. The Member (1982) 34 DLR (AD) 309.

—If an offence fails to be tried by an ordinary Magistrate as well as by a Tribunal set up under a special Act such offence should be tried by the Special Tribunal. Kalipada Shaha Vs. The State (1985) 37 DLR (AD) 135.

 

—Offence committed—outside Bangladesh— Court in Bangladesh has jurisdiction to try the accused. M.G.Tawab Vs. State (1982) 34 DLR 390.

 

—After submission of charge-sheet the police can not ask to cancel the same and re-investigate the same case nor the Court can direct the police to re-open the investigation. Sultan Ahmed Vs. The State (1985) 37DLR 185.

 

186. Jurisdiction  to try

(Court's jurisdiction to decide which offence it can try.) It is true if the Sessions Judge has not been empowered to try cases which fall under Special Powers Act, in that case the Sessions Judge cannot try the case. It is upto the Court to decide which of the offences he has got jurisdiction to try. Abdul Mannan Sarder Vs. The State. (1985) 37 DLR 38.

 

187. Jury,  trial by

Two of the jurors Anglo-Indian gentlemen— Public Prosecutor on the suggestion of the Judge handed over written address to Anglo-Indian jurors who said that they did not fully understand Bengali—Accused are prejudiced by procedure adopted. 53 CWN (1 DR) 144.

 

188.   Justice

The principle that justice should not only be done, but also appear to be done, not observed in this case. Khandoker Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

—Justice should not only be done but should be seen to have been done.

The trial Judge in the absence of the Public Prosecutor himself examined three prosecution witnesses and marked documents as exhibits and thereafter ordered that the case for the prosecution was closed. After this the accused were examined u/s.342 Cr.P.C. To the defence plea that the trial was not properly conducted, it was contended that no prejudice had been caused to the accused as the witnesses examined by the Court were all unimportant.

 

Held : It is not always the question of principle but is also the question of fairness of the trial with which a. Court is concerned.

 

Where the trial, as in this case, has been conducted in a way not authorised by law and the fundamental rules of procedure were not followed, the defect goes to the very root of the case. Abdul Wadud Vs. State (1959) 11 DLR 310; (1959) PLD (Dae) 924.

 

189. Last moment appoinment

Last moment appointment of a defence lawyer to defend an accused on a murder charge, deprecated—Elaborate provisions made in the first paragraph of Chapter XII of Legal Remembrartcer's Manual 1960, must be kept in view when a defence lawyer to represent an undefended accused is appointed. Abdur Rashid Vs. Slate (1975) 27 DLR (SC).l.

 

190.  Late  appointment

—Late appointment of defence lawyer by the Court has resulted in prejudice to the prisoner and for this reason sentence of death is set aside and the case is sent back for retrial with direction for appointment of a defence lawyer making sure that he has enough time to prepare the defence. The State Vs. Munna (1975) 27 DLR 29.

 

191.  Law's course

Law's course—Grievous murder committed giving rise to a sense of horror and indignation : A valuable life^ an asset to the country, suddenly cut off by the murderer's bullet and knife—In assessment of all facts and circumstances as laid before the court the Law pursues a cold logic without being deviated by any emotion and when they disprove the charge of guilt however heinous be the crime committed, the prisoner charged entitled to be acquitted and set free". State Vs. Makbul Hossain (1974) 26 DLR 419.

 

192.  Lawful excuse

The accused was found in possession of a fire­arm not authorised—His defence was a plea of lawful excuse. The prosecution proved that the appellant was carrying a revolver and he had no lawful authority to do so. His defence was simply that on the occasion referred to in the charge he had a lawful excuse for carrying the weapon. The testimony of the appellant, if accepted, went far enough to justify a finding that he was carrying the . revolver on the occasion charged in the course of complying with the Government's request and because he wanted and was waiting to surrender with it to the police when they arrived and had actually tendered it to the Temiars to whom he had made his offer of surrender. In the light of the views already expressed in dealing with the points made against the appellant, their Lordships are unable to resist iht conclusion that such a finding would have warranted a verdict of "lawful excuse" and they are, accordingly, of opinion that that issue ought to have been left to the assessors. Wong Pooh Yin vs. Public Prosecutor(1955) 7 DLR(PC) 506.

 

193. Law taking effect

Law taking effect on the happening of a certain event. When a law is made to take effect on the' happening of a certain event, the legislature in effect declares the law, but leaves it to an external agency to bring it into force, whenever it considers it expedient to do so. Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258.

 

—If a temporary Act is passed by the legislature for one year, it dies a natural death after the lapse of one year. Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258.

 

194. Lawyer engaged by the State

Lawyer engaged by the State to defend an undefended convict sentenced to death-last minute engagement with hardly any time to prepare for defence in consultation with the convict—Defence led as revealed by cross-examination was most perfunctory—amounts to denial of justice to the accused—Courts and defence lawyers are again reminded of their responsibility in cases like this—case sent back for retrial.

 

Since the accused did not have a proper defence at the trial the whole proceeding was vitiated. The cardinal principle of criminal law is that let hundred accused be free but let not one innocent person

suffer. It has become necessary to draw the pointed attention both of the learned members of the Bar and of Subordinate judiciary and to remind them once again that if the decisions of the superior courts are carefully followed, then lot of unnecessary delay and suffering can certainly be avoided. Had the learned Advocate and the court been a little diligent, they could have easily found the necessary guidelines in PLD 1954 Lahore 69; 16 DLR (Dacca) 388, 22 DLR (Dacca) 280 and lastly, in 27 DLR (Appellate Division) 1, in all of which under similar circumstances the conviction and sentence were set dside with direction for retrial in most of the cases. State Vs. Altaf (1980) 32 DLR 254.

 

195.  Lawyer's  responsibility

Lawyer's responsibility, when engaged in a case to discharge their duties both in relation to their clients and to the Court as well as the Courts duties to allow reasonable facilities and accommodation in due dispensation of justice. AsifAli Vs. The State, (1973)25 DLR (SC) 68.

 

—Lawyer's grave responsibility involving contempt of Court in appearing for fugitive convict. Attorneys and members of the bar will bear in mind the serious consequence of committing contempt of the Court in moving on behalf of a prisoner who is a fugitive from law. The appeal filed by the counsel on the basis of the power of attorney executed by Gul Hassan in favour of Khawaja Mohammad Khan before his absconsion was thus not properly constituted and should have been dismissed by the High Court on that ground alone. Omissions in statements before the police or before the court amounts to contradictions when they are on vital points. Md. Ramzan Vs. Nasir Hussain, (1969) 21 DLR (SC) 104.

 

196. Legal Evidence

Accused presumed to be innocent of the charge till guilt is established by legal evidence—No particular number of witnesses legally required to, prove the offence. Muslimuddin Vs. State, (1986) 38 DLR (AD) 311.

 

—Different class of cases as distinguished on the basis of supporting evidence led by prosecution.

In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may not support the accusation in question. Farruk Ahmed Vs. Abdul Kader (1986) 38 DLR (AD) 18.

 

—Accused presumed to be innocent .of the charge till guilt is established by legal evidence—No particular number of witnesses legally required to prove the offence. Muslimuddin Vs. State (1986) 38 DLR (AD) 311.

 

197.  Legal  Practitioner's Misconduct

Tampering with witnesses in a criminal case is one of the grossest forms of misconduct in which an officer of the Court such as a pleader could indulge. 1954 PLD (Lah) 674.

 

198.   Legislative  powers

A Legislature cannot delegate its powers of making, modifying, or repealing, any law to an external authority. Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258.

 

—It is open to a Legislature to delegate powers relating to the enforcement of the Act, or its application to particular areas, if certain conditions prevail therein; that merely amounts to conditional legislation...........If any Legislature delegated legislative functions to an external authority such delegation would be invalid. Sobho Gyanchandani Vs. Crown (1952)4 DLR (FC) 258.

 

—The   power   authorising   the   Central . Government to extend the life of Pakistan Public Safety   Ordinance—How   far   valid.   Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258.

 

199.    Legislature

If a temporary Act is passed by the Legislature for one year, it dies a natural death after the lapse of one year. Sobho Gyanchandani Vs. Crown (1952) 4 DLR (FC) 258.

 

199A. Leniency in the matter of Sentence

The mare fact that a man who has taken part in a premeditated murder is an old man of 60 is no ground for taking a lenient view. Punishment must not be determined by any vindictive consideration, leniency in the matter of sentence where it is not deserved is a serious dereliction of duty. Normal sentence in such cases is death. Nowsher All Vs. Stale 39 DLR 59.

 

200.    Limitation

In criminal proceedings law of limitation is not applicable. Muhammad Rafi Vs. Slate (1960) 12 DLR (WP) 73 : (1960) PLD (Lah) 986.

 

—The contention was that as the orders of acquittal passed by the Magistrate in the first prosecution were not appealed from, they became valid on the expiration of the period of limitation under Article 147 Limitation'Act.

 

Held: If the orders of acquittal were passed by a court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal. But if the orders were a nullity there was nothing to appeal against. YusufAli Vs. Crown (1950) 2 DLR (PC) 151.

 

1887

Criminal Trial Synopsis 1

Citation: (1973) 25 DLR 140, (1971) 23 DLR 184, (1983) 35 DLR 425, (1984)36 DLR (AD) 58, (1960) 12 DLR 166, (1984) 36 DLR (AD) 58, (1976) 28 DLR 74, (1975) 27 DLR 261, (1982) 34 DLR 371, (1982) 34 DLR (AD) 222, (1982) 34 DLR (AD) 222, (1953) 5 DLR (WPC) 115, (19

Subject: Criminal Trial Synopsis

Delivery Date: 2018-09-29

201.  Long  delays

Long delay in final disposal of the case, since the order of conviction was first made—Sentence of imprisonment altered to sentence of fine. Having regard to the chequered history of the case and also keeping in view that more than six and half years have elapsed since the order of conviction by the learned Magistrate and more than ten years from the date of the occurrence. I think it will not be proper to send the accused to jail now. In this view of matter, the substantive sentence of R.I. for 6 months imposed on each of the petitioners by the Appellate Court under section 147,P.P.C. should be altered to the sentence of fine only. Striking a balance between leniency and hardship, in the facts and circumstances of the case. I think the ends of justice will be sufficiently met if each of the petitioners is sentenced to pay a fine of Rs.250/-, in default to suffer rigorous imprisonment for 6 months each. Shamsul Hague Vs. Jafar Mia, (1973) 25 DLR 140.

 

202.  Magistrate

Magistrate not justified to ignore specific provisions of law just to comply with the direction given by his superior Officer, tlashi Meah Vs. Aminul Islam Chowdhury (1971) 23 DLR 184.

 

—If the Magistrate found on the basis of materials that the case is triable by Sessions Judge he should have acted u/s 205C and now u/s 205CC. Abdus Salik alias Sarkumullah Vs. The State (1983) 35 DLR 425.

 

—Magistrate trying the case should ignore the police assessment of the witnesses' statement which is not a police function, but for the'Court. A Salam Vs. State, (1984)36 DLR (AD) 58.

 

—Magistrates—Special     Magistrates—

Besides the power under the Criminal Procedure Code, when vested with special powers to discharge special functions—The orders of such Magistrate when discharging special function will be regulated by the provisions of the special law but, when acting as ordinary Magistrates they are amenable to the jurisdiction of the superior courts. M.Siddique for MIS. Gani and Tayeb Ltd. Vs. MA. Razzakfor MIS. M.A. Razzak & Sons. (1960) 12 DLR 166.

 

203. Magistrate  taking cognizance

Magistrate taking cognizance of a case on a report made u/s 202 CrP.Code is not competent to go into the question whether the accused has been implicated out of enmity—This shall be matter of the Court trying the case. A. Salam Vs. State (1984) 36 DLR (AD) 58.

 

204. Magistrate when  acting judicially

A Magistrate when acting judicially must act in a manner provided by law, and not otherwise. Shifting of the date of trial to an off date on the mere initiative of the accused exparte in the absence of the complainant; and acquittal of the accused on the plea of absence of the complainant cannot be sustained in law. Mantu Mia Vs. Akhlakur Rahman (1976) 28 DLR 74.

 

205. Magistrate's duty

Magistrate's duty concerning cases pending before him. The learned Magistrate observed that because of his preoccupation with the executive duties he got hardly any time to devote himself to this case in which "three steel boxes of documents" have been filed by the parties; fle must remember that his judicial work is not of lesser responsibility. Abul Farah Vs. Mozammel Huq (1975) 27 DLR 261.

 

206.  Malafide

Authority's motive against the present petitioner, to keep him away. The conclusion becomes inescapable that the intention of the then Government was to keep the petitioner out of the country, failing which to keep him in custody. A man may be prosecuted for an offence alleged to have been committed but the law does not permit a citizen to be prosecuted and harassed. M.G.Towab'Vs. State (1982) 34 DLR 371.

 

—Malafide not immune from scrutiny.

Malafide or coram non judice proceedings are not immune from the scrutiny of the Supreme Court notwithstanding any ouster clauses in the Martial Law proclamation. Khandoker Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

—Requirement of Law for production of the accused before a Magistrate after his arrest not observed — proceedings followed clearly show that arrest and subsequent proceedings were characterised by Malafides which vitiated the Trial in the present case. Khandoker Moshtaq Ahmad Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

—Malafide when established, conviction must be quashed.

The judicial mind having swung in the facts and circumstances of the case to the extent that the proceedings were taken malafide and in colourable exercise of power the inevitable inferential consequence was to record the quashment of the conviction. Khandoker Moshtaq Ahmad Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

—Malafide must be alleged arid facts constituting malafide are to be stated and when called upon by the Court the party alleging malafide must establish it by an affidavit or otherwise. In order to strike down an order passed by an authority the facts constituted malafide must have co-relation with jurisdiction and be analogous to an order made coram non judice. Khandoker Moshtaqe Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

—Malafide,  reasonable  apprehension.

It was held that it was not necessary to show that the justice was, in fact, biased. It is enough if the accused might reasonably have formed the impression that this justice would not give this case an unbiased hearing. Khandoker Moshtaqe Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

207. Martial law

Different senses in which in constitutional law the expression is used—Rights and duties of the military under a martial law are part of the civil law of the land. Md. Umar Khan Vs. Crown (1953) 5 DLR (WPC) 115,

 

—Martial law in the sense that during civil commotion, rebellion, etc., all constitutional guarantees are suspended not recognised in this country. Md. Umar Khan Vs. Crown (1953) 5 DLR (WPC) 115.

 

208. Martial Law Court

— Martial Law Court can not try offences committed before the birth of Bangladesh (Martial Law Courts.) There is nothing in the preamble of the First Proclamation or for that matter the Second Proclamation which seeks to confer jurisdiction to the Martial Law Court to try certain offences committed even before the birth of Bangladesh. It is, however, an accepted principle in modern jurisprudence to give retrospective effect to penal statutes.

 

"Even where a statute is clearly intended to be to some extent retrospective it is not to be construed as having a greater retrospective effect than its language renders it necessary."

 

On application of the principles laid down in the decisions reported in 26 DLR(SC) 17 and 28 DLR (SC) 38 we find that in the present case the prosecution has been launched against the accused for a period which is not only beyond the period to which Martial Law Regulations are applicable but also without compliance with the procedure laid down. Khalilur Rahman Vs. State (1979) 31 DLR 50.

 

Martial Law Regulation No.l of 1975 Regulation Nos. 3 & 8.

A Martial Law Court not empowered to convert a witness into an accused in the case. Notwithstanding the fact under section 190 of the Code of Criminal Procedure a trial Magistrate can convert a witness into an accused by taking a fresh cognizance of the case in question, there is no such provision under the Martial Law Regulation for any Martial Law Court to act in such manner. Thus taking into consideration the relevant provisions of Regulation Nos. 3 and 8 of Martial Law Regulation No.l of 1975 it must be said that with regard to taking cognizance of any case by a Martial Law Court it can only do so upon a report in writing by a relevant officer mentioned in the Regulation itself.

 

This court exercising its jurisdiction under Article 102 of the Constitution can strike down a proceeding before a Martial Law Court if it has suffered from initial lack of jurisdiction. Eric N. Ford Vs. Govt. of Bangladesh (1981) 33 DLR 228.

 

—Government or the President can not be directed by the Court to accept the M.L.Court recommendation for commutation of death .sentence which was passed by the M.L.R. Court. Power to suspend or remit sentences being absolutely within the discretion of the Government or the President, the Court has got no say in the matter. There may be very good reason for commuting the sentence by the confirming authority but there cannot be any direction from the Court for acceptance of the recommendation of the Court which passed the sentence of death. This is absolutely a matter which falls within the discretion of the President, and there is no bar in the Code of Criminal Procedure for making a second mercy petition for saving the life of the appellant. Ehteshamuddin Vs. Bangladesh (1981) 33 DLR (AD) 154.

 

—Chief Martial Law Administrator empowered to transfer a case from a Criminal Court to M.L.Court and it is not necessary that the case must be pending for trial after taking cognizance of it, etc. Kh. Ehteshamuddin Ahmed Vs. Bangladesh (1981) 33 DLR (AD) 154.

 

Change in the composition of the Special Martial Law Court which was to try the appellant created apprehension in the mind of the appellant. Khondaker Moshtaque Ahmad Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

209.  Master's   liability

Master's (owner's) liability—not responsible for any offence committed by his servants without his being a participant in the crime or without his direction. .Shafiuzzaman Vs. Slate (1957) 9 DLR 694.

 

210. Mens rea

Mens rea—when cannot be invoked. It has been argued that in the absence of any metis rea the petitioners could not be held guilty of the offence charged. The short answer to this ground would be that there is hardly any scope of any mens rea being invoked in a case like this. There is no charge or allegation that the petitioners (namely the shipping agents) concealed or suppressed any fact in the import manifest that was submitted before the Customs Authority. The only thing they were charged for was shortage of the imported oil after it was measured in accordance with the customs regulations. Hegge & Co. Vs. A.C. of Customs (1979) 31 DLR 306.

 

—Bonafide claim as to title—If the accused acts in the bonafide belief, necessary mens rea not established. Manlazuddin Vs. Crown (1956) 8 DLR 95(97 rt.-h. col)

 

—The legislature has got power to dispense with mens rea in certain class of cases. Statutes of absolute prohibition may create a strict liability irrespective of mens rea. Daluram Bahani Vs. State (1957) 9 DLR 667.

 

r-Mens rea—Not a necessary ingredient where legislature dispenses with it, directly or indirectly. Daluram Bahani Vs. State (1957) 9 DLR 667.

 

—It is true that if a law prescribes an absolute prohibition against the doing of a certain act, as a general rule, mens rea is not a constituent of the offence.   M/s.  S.A.  Haroon  Vs.  Collector of Customs (1959) ll.DLR(SC) 177.

211. Method of defence

Per F.K.M.A. Muhim C.J.—(expressing minority view) It is common knowledge and experience that dispute over land is one of the causes of murder in this country. Raising doubts and suspicions regarding the evidence of prosecution witnesses is a well-known defence method but it must have some reasonable basis. Muslimuddin Vs. State, (1986) 38 DLR (AD) 311.

 

212.   Minister

Is an officer subordinate to the Governor. Crown Vs. Md. Fazal Bangasa (1956) 8 DLR (PC) 102.

 

213.   Misconduct

False plea of payment—Distinction between a finding that the plea taken is a false plea to the knowledge and that is not established to be so. Sarder Ali Vs. Judges H.C., W.Pak. (1956) 8 DLR -(SC) 140.

 

214.   Misdescription

The true designation of officer trying the offence was "Political Agent and District Magistrate" and was described as such in the record of the proceedings but in the charge-sheet he was described as "D.M." while the offence was triable only as "political agent" (who exercised powers of Court of Session)—Misdescription is of no effect upon the legality of trial. Piao Gul Vs. State (1960) 12 DLR (SC) 283.

 

215.  Misuse  of power

Misuse of powers vested under the provision of Emergency Powers Rules for purpose of arresting a person without any legal authority and not only without any sanction of law but contrary to it condemned.  Md. Ismail Hossain Vs. Govt. of Bangladesh (1977)29 DLR 344.

 

216.   Motive

Motive for committing crime-necessary. Its proof, if Prosecution is not bound to offer any motive. If, however, any motive is offered, the Court may consider it but failure to prove motive does not necessarily affect the prosecution case, if it is proved on evidence. Abdur Rashid Vs. State (1975) 27 DLR (SC) 1.

 

—Motive, failure to prove positive motive in the commission of a crime, no ground for rejecting clear evidence. Lai Khan Vs. Muhammad Sadiq, (1968) 20 DLR (SC) 307.

 

—Though proof .of motive to commit a crime is not essential still it is a material consideration. Wall Md. Vs. The King (1951) 3 DLR (PC) 372.

 

—Motive.—failure to prove motive, not a circumstance which can be used as corroborative evidence—the fact that the accused was seen in the company of the approver on the day of crime, failure to explain why the approver should depose falsely are not matters of any corroborative value. Abdul Qadir Vs. State (1956) 8 DLR (SC) 165.

 

—It is well-settled that it is not necessary for the prosecution to prove the motive for a crime. The mere fact, therefore, that the prosecution has not suggested any definite motive for the crime, does not mean that the person proved to have committed a crime is not liable for it. Zahid Hussain Vs. Crown (1954) 6 DLR (WPC) 225.

 

—Prosecution led evidence as to an incident which took place 6 years back to show that the accused made an attempt to poison the murdered man.

 

Held: The Session Judge should have refused to record evidence on this matter and should have ruled it out of consideration. Crown Vs. Abdul Quddus(1953)5DLR52.

—Motive is often a matter of conjecture and cannot alone form basis of conviction or corroboration of the confession. (1956) 8 PLD (Kar) 350.

 

Though motive is normally irrelevant in a criminal case, but the question of motive in this case which is based on circumstantial evidence is an important one. Touhid Alam Vs. State (1986) 38 DLR 289.

Criminal Courts are not to be utilised for adjudication of civil disputes—Court strongly disapproves resort to criminal proceeding for harassing a person with motive of settling civil disputes. Maqsood Alam Vs. K.M.J. Akbar (1987) 39 DLR 214.

 

217.  Natural justice

The words "failure of justice" is not justice in the abstract or moral sense nor even justice according to natural law. Its content has not as yet been correctly determined nor is it capable of such precise definition. To constitute a denial of natural justice, there must be a violation of some fundamental principle of law or procedure of such importance that it would shock the conscience of the court and it would consider it to be a case where the substance of a fair trial had been denied. Denial of natural justice would be inferred where a person sought to be condemned or to be adversely affected is not given any opportunity of being heard in his defence or where the judge himself is interested in the matter by reason of some pecuniary or other interest or where there has been such other flagrant disregard of procedure. Bharat Tewari Vs. N. Hossain (1958) 10 DLR 481; (1959) 11 PLR 276.

 

—No violation of the principle of natural justice unless there is a denial of an opportunity to call evidence by the accused or preventing him from giving an explanation. Where the accused was not denied any opportunity of calling any evidence that he wished to call in his defence or was not prevented from giving any explanation that he wished to give or from stating his case, he cannot lay a complaint that there has been a violation of the principle of natural justice in his case.

 

Before a subject is penalised upon a finding of misconduct, it is necessary that he should first have ken asked for an explanation of his conduct. MIS. Farid Sons Ltd. Vs. Govt. of Pakistan (1961),. 13 DLR (SC) 233 : (1961) PLD(SC) 537.

 

218. Non-consideration  of important circumstances

Non-consideration of important circumstances I by the Trial Court vitiates the judgment. There is no evidence on record at all to establish the identity of the person who was knocked down by the bus with the person on whose dead body the inquest was held. Furthermore, there is no post­mortem examination to show the cause of death of the person over whose dead body the inquest was teld. The non-consideration of these material facts by the learned Assistant Sessions Judge has caused a failure of justice and the learned Assistant Sessions Judge has committed an error of law. Ahmed Alt, Vs. The State (1974) 26 DLR 182.

 

219. Non-examination  of the  Investigation Officer when prejudices the defence

The learned Advocate submits that non-examination of the I.O. has prejudiced the defence of the accused appellant inasmuch as the defence has ten deprived of the opportunity of cross-examining the I.O. as to the manner and method of investigation and as to the statement of witnesses recorded by him u/s 161 Cr.P.C. The learned Special Magistrate has dismissed this argument at the trial on the short ground that the defence has not been prejudiced in any way thereby. It is difficult to agree with the learned Special Magistrate on this score. There is evidence that the I.O. took three accused persons to the house of P.W. 2 and that P.W. 1 also accompanied the I.O. and the 3 accused persons when ikey were arrested. The T.I. parade would have been subjected to further exposure if the I.O. was examined and questioned in this respect. The defence of the accused appellant was, therefore, prejudiced because of the non-examination of I.O. in this case. Ismail Munshi Vs. State (1981) 33 DLR 5.

 

220.  Oath

Administration     of    oath     to     an accused—its   effect.

Administration of an oath to an accused person is opposed to public policy. Such administration of oath to an accused is an express statutory illegality and if oath is illegally administered to an accused, the statement made by him cannot be used as evidence. Abdur Rashid Vs. The State, (1970) 22 DLR 110.

 

221.   Observation by the High Court

Observation by the High Court, on a bail petition, whiclus likely to prejudice the accused in their defence, when the case is pending trial, should in all cases be avoided. Md. Sharif Vs. Md. Ashraf, (1973) 25 DLR (SC) 71.

 

222.   Offences

Offences committed prior to 15.8.75 by a person in different state cannot be tried under M.L.R. Khalilur Rahman Vs. Stale (1979) 31 DLR 50.

 

223.   Official   use   only

For "official use only" means for use of Govt. Official does not imply that a particular publication marked 'official use only' was secret or confidential. State Vs. Edward Snelson (1961) 13 DLR (WP) 14; (1962) PW (Lah) 42.

 

224.  Omnibus  statement

Conviction of several accused persons on omnibus statements of the P.W.—cannot be sustained. Ali Akbar Khan Vs. State (1982) 34 DLR 94.

 

225. Ordinance

Effect of—as against permanent statute—For the contention that the promulgation of a temporary Ordinance repeals a statute of a permanent character there is neither any pririciple nor authority in support of it. The statute subsists and is only superseded by the Ordinance for the period it remains in forcev so that on the expiry of the Ordinance the Statute once again comes into operation. A.M.Hashem Vs. Crown (1954) 6 DLR (FC) 1 (5 rt.-h.col)

 

226. Parliamentary privileges  and immunities

Preventive arrest and detention of the members of the Legislative Assembly, under East Bengal Ordinance No.21 of 1951, docs not involve breach of  the parliamentary privileges and immunities which such members are entitled to. Khairat Hussain & Abdur Rashid Tarkabagish Vs. The Govt. of East Bengal (J952) 4 DLR 472.

 

227.  Particulars regarding commission  of several   offences

Particulars regarding commission of several offences by an accused facing trial under the Collaborators Order which requires that in respect of cases coming under that Order summons case procedure shall be followed—Yet sufficient particulars of the allegations must be given to the accused so that he may not be prejudiced in his defence. The State Vs. Munna (1975) 27 DLR 29.

 

228. Pendency of a civil suit

Mere pendency of a civil suit would not be a bar for drawing up proceeding under section 145 Cr.P.C. Md. Abu Daud Vs. Anil Kumar (1984) 36 DLR 345.

 

229.  Pending cases

When a case becomes pending in a court. On the lodging of the F.I.R. a case does not become a case pending in a Court within the meaning of clause (c) of s. 35 of Ordinance 24 of 1982. It is then a case pending for investigation within the meaning of clause (d). After investigation and on the submission of charge-sheet before a court it would become a case pending in court. Masu Sardar Vs. Rashed (1985) 37 DLR 182.

 

—"Pending case' what is : A case becomes a pending case as soon as cognizance is taken by a competent court Ruhul Amin Vs. State (1986) 38 DLR 166.

 

—"Pending case" means a case of which cognizance has been taken by a court. A case becomes a pending case as soon as cognizance of the offence is taken by a competent Court Ansarul Alam Vs. Slate (1986) 38 DLR 177.

 

—Trial commences when charge is framed or the accusation is stated to the accused. "A pending case" and "a case pending trial"— Difference between the two. Ansarul Alam Vs. State (1986) 38 DLR 177.

 

230.  People's  right  of criticism  of Government

People's right of criticism of Government in a democratic country—The extent of such criticism considered to be lawful. In a democratic country like Pakistan people's right to express themselves freely and, if need be, strongly and even bitterly against what were, considered to be lapses of the Government could not be denied, so long as such expression did not degenerate to mere abuse tending to rouse people's emotions to a pitch at which they might resort to violence. Md. Mansur All Vs. The State, (1970) 22 DLR 385.

 

231. 'Person' and 'accused'

'Person' and 'accused'—Stage at which a 'person' ceases to be treated so and in law becomes an 'accused'.

When there is evidence against an arrested person he becomes an accused but if there is no evidence or no ground for reasonable suspicion he remains a 'person'. When the stage reaches, as contemplated in section 170 Cr.P.C. the person is no more a person, he is an accused because the legislature says if upon investigation under this Chapter it appears to the Officer-in-Charge of the Police Station that there is sufficient evidence or reasonable ground, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence by the Police report and to iry the accused or commit him for trial. Thus a person does not become an accused automatically or by fiction of law the moment an information is lodged with the police that the person reported against had committed an offence. That person against whom the complaint had been made still remains a 'person' and not an ' accused' till the date when, through investigation, some definite and concrete facts or sufficient materials are collected for connecting the person with the crime and the person ceases to be a person and becomes an accused. A.T.Mridha Vs. The State, (1973) 25 DLR 335(337).

 

—A person who can commit a person to custody performs a judicial function.

High Court averse to interfere where a court finds a prima facie case against a person. A.TMridha Vs. The State, (1973) 25 DLR 335.

 

232. Pith and substance

The expression "pith and substance" is used generally with reference to sub-constitutional laws but may be aptly used with reference 19 a constitutional provision which is not of the organic category. The expression "pith and substance" is familiarly applied to the examination of statutes in point of their competency i.e.in a federal constitution, for the purpose of determining whether statute relates to one subject or to another, subject. It is unusual to employ this expression when construing the scope and content of a constitutional provision. Abdul Aziz Vs. Province of West Pakistan (1959) 11 DLR (SC) 126  (1958) PLD(SC)499.

 

233.. Place of trial

Magistrate's direction in the matter of choice of the place of trial other than the court should be announced by a formal order. Md. Rezzaqul Islam Vs. The State, (1968) 20 DLR 461.

 

234. Place of trial in jail

Prior notice to be given of such place for trial of the case. Where a Magistrate does not hold the trial in the Court house but holds it in the jail premises or in some other place it is essential that he should pass a formal order declaring that the trial would be held in the place specified in the order. JamshedAli Vs. The State, (1968) 20 DLR 503.

 

235. Plea of accidental death

If it is thought that the circumstances found are not sufficient to establish that the death was accidental, yet, where enough has been established to give rise to a reasonable possibility that the plea of accident is true, sufficiently to create a reasonable doubt in relation to the proof of the prosecution case, the accused is entitled to a verdict of not guilty. Md. Siddiq Vs. Crown (1954) 6 DLR (FC) 56 (62 rt.h.col.)

 

—The question for determination was whether the prosecution case of intentional killing, or the defence case of accident was true. In such a case, even if an act by the accused resulting in death is admitted, there can be no presumption that the act was voluntary and intentional, and these elements must be established by the prosecution, like any other element of the offence charged. It is not correct to say that the accused must be found guilty if he fails to show the circumstances necessary to .establish the accident pleaded by him. Sultan Muhammad Vs. Crown (1954) 6 DLR (FC) 28.

 

236. Plea of payment

Distinction between a finding that plea taken is a false plea to knowledge and that it is not established that is so false—Distinction material. Ch. SardarAli Vs. Judges ofH.C.W. Pak. (1956) 8 DLR (SC) 140.

 

237. Police's indiscreet and '   illegal   action

Police's   indiscreet   and   illegal   action condemned—Irresponsibility shown by the Addl. District Magistrate underlines the malafide nature of the order of detention. Md. Ismail Hossain Vs. Govt. of Bangladesh (1977) 29 DLR 344.

 

238.   Possession of rationed or fair-priced  commodities

Possession of rationed or fair-priced commodities not per se an offence unless thercfis some overt act? Basiruddiii Ahmed Vs. The Sta'te (1982) 34 DLR 413.

 

239.Post-mortem

Post-mortem report if otherwise inadmissible in evidence however may be used by the defence for its own purpose and not by the prosecution side. State Vs. Mokbul Hossain (1985) 37 DLR 156.

 

—Post mortem examination. The doctor while holding the post mortem examination did not record the age of the injuries. In a case of murder the age of injuries is an important fact to determine the approximate time of occurrence. Abdur Rashid Vs. The State (1975) 27 DLR (Appl. Div.) 1.

 

240.  Power to conduct private case by Deputy Attorney-General

Deputy Attorney-General can not appear on behalf of a private party, in-a criminal case, when he is already appearing for the State in the same case— Neither can he ask the court to accept an affidavit sworn.by a private-party. Md. Mustafa Anwar Vs. The State, (1983) 35 DLR 165.

 

241.  Practice of Dacca High Court

Not allowing grounds to be urged in criminal revision except those on which petition was admitted—Not approved by the Federal Court. It appears J.o be an established practice of the High Court of Dacca not to allow any grounds to be urged in support of a revision petition except the ground or grounds on the basis of which a Rule had been issued in the first instance. Having regard to the very wide power, which the High Court may exercise under section 439, read with section 423, the practice of confining the High Court's attention at this stage of the case to such matters as attracted the attention of the Bench which admitted the petition entails a danger inasmuch as points may be overlooked which very seriously affect the justice of the case. Abdus Sattar Molla Vs. Crown (1953) 5 DLR (FC) 14 (17 left.h.col)

 

242.   Preamble

When measure taken under an Act is not in consonance with the preamble of the Act, it is invalid. Begum Zeb-un-Nissa Vs. Pakistani 1958) 10 DLR (SC) 44.

 

243. Prerogative of the Crown

The phrase "Prerogative of the Crown" signifies such special privileges as have been assigned to the Sovereign by ihe common law. Powers which have been specially conferred upon the Crown by virtue of statutes do not form part of the prerogative. Md. Nawaz Vs. Crown (1955) 7 DLR (FC) 253 (257-258).

 

244.  Preparation

"Preparation" to commit an offence, what it implies—prosecution's obligation to establish when the charge is preparation to commit offence. Basiruddin Ahmed Vs. The Stale (1982) 34 DLR 413.

 

245. Presence of corpus delicti

Presence of corpus delicti is proof of death but its absence not fatal to .tHe trial of the accused for murder.

Presence of the corpus delicti is no doubt proof positive of the death but its absence is not fatal to the trial of the accused for murder. Literal meaning of the term corpus delicti is 'body of the offence' that is, the ingredients which go-to make it up. The expression corpus delicti has been used in the penal laws of this Sub-continent rather loosely to signify the body of the murdered man in case of murder. However, in view of the definition of 'proved' in the Evidence Act, there is no room for the 'body' doctrine. State Vs. Abdur Rahman (1975) 27 DLR 79.            

                                   .                         :

246.  President's Order 50

President's Order 50 of 1972 having been repealed with effect from 9.2.74, no trial under that Order would be valid after 9.2.74. They can be proceeded with, if found necessary, following the procedure under the Criminal Procedure Code. Tozammel Hossain Sardar Vs. The Slate (1975) 27.DLR 36.

 

247.   Presumption   of guilt

Accused seen with the deceased alive for the last time. The accused having been in the same field with the deceased, a duty was cast on him to explain as to how did the deceased meet with the unnatural death. By itself this circumstance may not be considered enough to connect the accused with the murder but taking it in conjunction with the other circumstances in the present case it assumes an importance of the greatest magnitude. Nazra Vs. State (1960) 12 DLR (WP) 34 : (1960) PLD (Lah) 739.

 

248.   Principle

The principle that justice should not only be done, but also appear to be done, not observed in this case. During the period from 5.1.77 to 5.6.77 the review was to be done by the Chief Martial Law Administrator. Originally it was in the hand of the Government and the Government exercised such power between 22.8.75 & 4.1.77. Then again power was reverted to the Government from 6.6.77 and the order of review that has been passed by the Government was made on 6.10.77 and the court noticed the order of the Government in its order sheet on 16.11.77. Sequence of events show that the argument of the learned Advocate that all steps were being taken "in a calculated manner" and the machinery "so organized according to the choice of the, then Chief Martial Law Administrator" and the constitution of Martial Law Court" that two of the members including the Chairman from the Army are of his own choice and the Chief Martial Law Administrator himself would review the judgment of such a Court" gives the impression 'that justice should not only be done but appear to have been done was not kept in view. Khandakar Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

249. Principle of double jeopardy

Principle of double jeopardy, is applicable only to cases in which the accused is tried a second time for the same offence for which he has already been tried. This principle has no application in cases of police investigation for second lime. Muhammad Hay at Vs. Chief Sett I. Commr. (1971) 23 DLR (Lah.) 3,4.

 

250.     Private  complainant

A private complainant not entitled to a notice when bail application is being moved. Abdul Motaleb Vs. The State (1975) 27 DLR 665.

 

251.  Procedure

The trial of a case begins with the framing of the charge and ends with the 'passing of the Judgment. Joynal Gazi Vs. The State (1983) 35 DLR 422.

 

—-There is something dramatic when one's own case is proved from the mouth of the witnesses of the epponent. Muslimuddin Vs. State, (1986) 38 DLR (AD) 311.

 

—When the trial actually began—If the case was not taken out of the trial list on the application of the accused in the case the trial would nave to be held under the old law. Mohitullah Pk. Vs. The State, (1986) 38 DLR (AD) 240.

 

—Of the same incident police case gives one version, complainant gives a different version— How the trial of both the cases in the same Court to proceed. A fair procedure to be adopted in the disposal of the two cases would be for the learned trial judge to trial the learned trial Judge may call the witnesses mentioned in the police chalan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540A of the Criminal Procedure Code, so that they can be cross examined by both the parties.

 

If that trial results in a conviction^ if will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under -section 494 of the Code of Criminal Procedure, in the Police chalan case. If the first case ends in an acquittal, the public prosecutor might still have to consider whether the police version has not then so seriously been damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution, otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record at the earlier trial, by way of cross-examination of the relevant witness, as permitted by law.

 

(Kaikaus, J. contra)—There is no ground for holding that the consolidation of criminal proceedings is open to any objection and the two cases in the present instance should be consolidated and be heard and disposed of together. Nur Elahi Vs. State (1966) 18 DLR (SC) 474.

 

—Procedural matters have retrospective effect: Provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible or unless there is some reason or other why they should not be so, have restrospective effect attributed to them. Alhaj Mamtaj Meah Vs. The Stale (1986) 38 DLR 152.

 

—Procedure of trial of warrant case —The law requires that trial of particular offences shall follow the procedure of summons case—But actually the magistrate in trying such an offence followed the  procedure of trial of warrant case—Trial vitiated. Giasuddin Mondal Vs. The State (1974) 26 DLR 227.

Trial of a case as also of a counter-case arising out of the same incident—Better course and in the interest of justice both the cases sould be tried by the same court. Shamsul Huq Vs. The State (1986) 38 DLR (AD) 75.

 

—An accused shall be tried in accordance with the procedure prevailing on the day when the trial commenced—If the procedure is changed by the time when the trial commences he cannot claim a vested right to be tried in accordance with the procedure prevailing be fore that. Mohitullah Pk. Vs. The State (1986) 38 DLR (AD) 240.

 

—When a trial is conducted in a manner different from that prescribed by the Code, trial is bad, and no question of curing an irregularity arises, but if trial is conducted substantially in the manner prescribed but some irregularity occurs in the course of such conduct, the irregularity can be cured undef section 537. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42; (1960) PLD (SC) 8.

 

—An accused shall be tried in accordance with the procedure prevailing on the day when the trial commenced—If the procedure is changed by the time when the trial commences, he cannot claim a vested right to be tried in accordance with the procedure prevailing before that. Mohiiullah Pk. Vs. The State (1986)38DLR(AD)240.        

 

—Wife of the complainant (in a prosecution for enticing away the complainant's wife u/s.498 P.P.C.) found present in Court intended to be produced as a defence witness. Examined by the court as a court's witness in course of taking down prosecution evidence. Held; the procedure adopted is legally valid. Syed All Newaz Gardezi Vs. Md. Yusuf(1963) 15 DLR (SC) 9.

 

—The procedural requirements of the criminal law are not mere formalities. Underlying the rules of 'procedure is an all pervading care to ensure the liberty of the subject and the due dispensation of justice. A. Batter Vs. Crown (1953) 5 DLR (FC\ 14 (37rt-h.col.)

 

—Procedure for trial of counter cases by the same court.

 

—Procedure—breach of—When a trial is conducted in a manner different from what is prescribed by the Code, the trial is bad, and no question of curing an irregularity arises. Qader Dad . Vs. Sultan Bibi (1956) 8 DLR (FC) 55.

 

—Procedure-non-compliance with—No conviction is legal when the charge under section 379 states that the accused committed theft of paddy belonging to the complainant without stating and finding that the paddy was taken out of the possession of the complainant. Osman AH Bapari Vs. Obaidul Huq (1957) 9 DLR 72.

 

—Procedure for trial of counter cases by the same—court trial of a case as also of a counter-case arising out of the same incident—Better course and in the interest of justice both the cases should be tried by the same court. Shamsul Huq Vs. The State (1986)38 DLR (AD) 75.

 

—Procedure, disregard of—a grave defect. Where a trial is found to have been conducted in a way not authorised by law and the rules of procedure relating to matters of a fundamental character, the decision in such a trial is of little consequence. The disregard of an express provision as to the mode of trial concerning a vital matter cannot be treated as an irregularity curable under section 537, Criminal P.C. Qadar Dad Vs. Sultan Bibi & the Crown (1956) 8 DLR(FC)55.

1888

Criminal Trial Synopsis-2

Citation: 2 PCR 135, (1978) 30 DLR 371, (1982) 34 DLR (AD) 222, (1958) 10 DLR (SC) 1, (1956) 8 DLR (SC) 140, (1954) 6 DLR (FC) 56 (62), (1954) 6 DLR (FC) 28 (30),(1982) 34 DLR 208, (1954) 6 DLR (FC) 28.,(1987) 39 DLR 414, (1953) 5 DLR (FC) 107 (109), (1957) 9

Subject: Criminal Trial Synopsis

Delivery Date: 2018-09-30

252. Procedural law.

Compliance with the procedural law. Where the non-compliance with the provisions of the Code of Criminal Procedure is with regard to a matter of a formal character, the result is an irregularity curable by section 537 of the Code but where the non-compliance amounts to a serious and substantial disregard of the provisions of the Code relating to the mode of conducting a trial, the result is an illegality. NurDin Vs. Crown 2 PCR 135.

 

—Procedural Law—Retrospective operation of—where retrospectively affects a person adversely, a court should be chary of giving retrospective effect. It must be pointed out that if in this process any existing rights are affected or the giving of retrospective operation causes inconvenience or injustice, then the courts will not, even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedure is of such a character that its retrospective application will tend to promote justice without any consequential embarrassment or detriment to any of the parties, concerned, the courts would favourably incline towards giving effect to such procedural statutes retrospectively. Regulation 3(2) if given retrospective operation then at once it will deprive the accused from right of an appeal which was provided for by the Special Powers Act, Haji Joynal Abedin Vs. Slate (1978) 30 DLR 371.

 

253. Production  of accused            

Requirement of law for production of the accused before a Magistrate after his arrest not observed—Proceedings followed clearly show that arrest and subsequent proceedings were characterised by malafides. Malafidcs of the proceedings vitiated the trial in the present cases. Khondoder Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

254.  Professional  duty

Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an Attorney, that at all events he shall win his client's case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. M.E.N. Rewail Vs. State (1958) 10 DLR (SC) 1.

 

255.   Professional   misconduct

"Professional tnisconduct" is fraudulent or, grossly improper conduct in the discharge of professional duties. Two elements are ingredients of the offence. Firstly, the conduct must be in the discharge of professional duties, Secondly, it muse be conduct involving moral turpitude. Ch. Sardar All, Advocate Vs. Judges ofH.C.W. Pak. (1956) 8 DLR (SC) 140.

 

—What is necesSary to find is something of a gross or evil nature, without which no conclusion of professional misconduct can be reached. Conduct which is inconsistent with the rules and traditions which govern the conduct of Advocates and Barristers and even the commission of a 'grave irregularity' are insufficient to constitute a 'professional misconduct'. Ch Sardar All, Advocate Vs. Judges of Il.C.W.Pak. (1956) 8 DLR (SC) 140.

 

—Munir, C.J., disagreeing with the majority view.

Disciplinary proceedings may be taken against an Advocate if, in the opinion of the Court, he has been guilty of some misconduct which has a bearing on the question whether he is a fit person J.o continue to be an officer of the Court; the misconduct need not be attributable to him while he was acting as an Advocate. Ch. Sardar Alt, Advocate Vs. Judges of H.C. W.Pak. (1956) 8 DLR (SC) 140.

 

256. Prosecution and defence

Rival cases of prosecution and defence to be considered in juxtaposition to each other and not in separate compartments. Md. Siddiqur Vs. Crown (1954) 6 DLR (FC) 56 (62).

—It is necessary that the whole case, namely, all the facts and circumstances adduced for the prosecution and the like facts and circumstances adduced for the defence, should be placed side by side and after a full consideration of their effect upon each other, if there still remains a reasonable doubt, the benefit of such reasonable doubt must go to the accused person. Sultan Mohammad Vs. Crown (1954) 6 DLR (FC) 28 (30).

 

—Prosecution failed to prove the manner of the occurrence—Court can't record conviction on some other theory. When the prosecution witnesses have failed to prove their version of the manner of occurrence the Court cannot convict the accused on some other theory or manner of occurrence which is not established by any evidence. The Court cannot obviously also convict the accused when the credibility of all the prosecution witnesses is completely shaken. Yunus AH Vs. The State (1982) 34 DLR 208.

 

— The question for determination was whether the prosecution case of intentional killing, or the defence case of accident was true. In such a case, even if an act by the accused resulting in death is admitted, there can be no presumption that the act was voluntary and intentional, and these elements must be established by the prosecution, like any other element of the offence charged. It is not correct to say that the accused must be found guilty if he fails to show the circumstances necessary to establish the accident pleaded by him. Sultan Muhammad Vs. Crown (1954) 6 DLR (FC) 28.

 

— Prosecution has to establish by definite and clear evidence that case for defence is untrue. Abdul Majid Vs. State (1987) 39 DLR 414.

 

257.  Prosecution  Version

Prosecution version to be placed side by side with defence version. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility thai the defence put forward by the accused might be irue, the accused is entitled to the benefit of doubt. Safdar Ali Vs. Crown (1953) 5 DLR (FC) 107 (109).

 

—If it is not possible to arrive at ,iny conclusion that the accused person acted, as irc alleges he did, on a consideration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. Safdar AH Vs. Crown (1953) 5 DLR (FC) 107 (109) (l.h.col.)

 

258.   Provocation

Plea  of Provocation, plea of — if can be raised for the first time in Supreme Court. A plea of provocation by wanton injury was successfully raised before the Privy Council on behalf of the appellant who was convicted for murder on the ground that there was evidence to support a pica of provocation sufficient to reduce the crime to manslaughter and the Privy Council upholding that pica reduced the crime to manslaughter. The Supreme Court held that plea of provocation by wanton injury cannot be available to a person other than the person provoked by the infliction, on his person, of injuries. Md. Anwar Vs. State (1957) 9 DLR (SC) 1.

 

259.   Public   agencies

The words "public agencies" make it clear that the doctrine of immunity has no application to private individuals or their properties. Even in the sphere of public agencies, where the principle applies, there is a growing opinion shared by most of the countries and the business world that principle of the immunity should not extend to public vessels engaged in commercial undertakings. Master Aminuzzaman Vs. Crown (1953) 5 DLR

 

260.  Public   Prosecutor

P.P. unfit to cqnduct a crown case if he had been engaged by a private party to assist the Crown counsel in the same case. Where an Advocate had been engaged by the brother of the murdered man to assist the Crown counsel in the conduct of the prosecution case and by a subsequent order of the District Magistrate the same Advocate is appointed Public Prosecutor to conduct, on behalf of the Crown, the very case.

 

Held: An Advocate who has once been engaged on behalf of the complainant's party is thereafter unfit to conduct the prosecution on behalf of the Crown. It is essential that no private feelings or private interest which may influence a complainant should be allowed to affect the impartial conduct of the prosecution. The Crown stands not necessarily for prosecution but for justice. Haider Bux Vs. Crown 1 PCR 26.

 

—Public Prosecutor—right of withdrawing from a case lies with him.

The duty of considering whether there are proper grounds for the withdrawal of a case rests with the Public Prosecutor, and it is his responsibility to consider whether there arc proper grounds that the case should be withdrawn in the interest of justice. The law does not permit any shifting of that duty. Crown Vs. Babu (1956) 8 DLR (WP) 120.

 

—Public Prosecutor and investigating agency— condemned. Abdur RoufVs. State (1986) 38 DLR 188.

 

—Rank inefficiency or negligence to duties by investigating agency as well as conduct in this prosecution by public prosecutor severely condemned. Abdur Rouf Vs. State (1986) 38 DLR 188.

 

—Real and veteran criminals, who engineered the whole plan of murdering 5 persons, were not brought to trial thus escaping prosecution on account of the failure of the State authorities or of the Public Prosecutor—These veterans arc allowed to lake their sound sleep at ease although the condemned prisoner disclosed real facts with a view to helping prosecution. Abdur RoufVs. State (1986) 38 DLR 188.

 

261.   Public   servants

The petitioner's contention was that when the offences were said to have been been committed namely in November 1964 they were not public servants within the meaning of amending Act. II of 1965, and as such they were not liable to be tried as public servants by the Special Judge under the Criminal Laws (Amendment). Act of 1958.

 

The question is where the law amended in 1965 could be retrospectively applied to include offences failing u/s. 5(2) of Act II of 1947 (as stood amended in 1965).

 

Held: If these laws arc procedural in nature they shall apply retrospectively. A law changing the character of an accused person from an ordinary citizen to that of public servant and providing variation of punishment to such accused person to his prejudice can not be said to be procedural law. Amending enactments were not given retrospective operation and hence on the date when the offences were alleged to have been committed by accused petitioners they arc not public servants and as such the learned Special Judge had no jurisdiction to try them under Pakistan Criminal Law (Amendment) Act 1958. Majibur Rahman Khan Vs. , The State (1981) 33 DLR 83.

 

262.   Punishment  of offences

An offence is only punishable for which a specific charge is provided under a statute. Slate Vs. Manjoo Chandra Datta (1957) 9 DLR 153.

 

263.   Quashment of criminal proceedings

Writ petition intending to forestall an intended investigation and prosecution on the basis of an FIR made by a person who allegedly was not competent to report the matter to police was held to be misconceived. Therefore provisions of section 561A Cr.P.C. for quashmenl of criminal proceedings is applicable to such a case. Md. Hayat Vs. Chief Settl. & Rehab. Commr. (1971) 23 DLR (Lah). 34.

 

—Quashing of proceedings when no case of offence is made out in the F.I.R.

Where the allegations in the First Information Report even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, then no question of appreciating the evidence arises and the High Court will be justified in quashing the proceedings. Shah Alam Vs. The State (1976) 28 DLR 448.

 

264.   Quashment of pending proceedings

If the police after investigation submitted charge-sheet against the accused, the High Court will not quash the pending proceeding on a fresh examination of evidence led. In this connection we may refer to the case reported in 34 DLR Page 390 in the case of M.G.Towab Vs. The Stale wherein the question of quashing a proceeding came up before this Court wherein it was held that "the F.I.R and the Charge-sheet of the case if give out certain materials and circumstances from which commission of the offence charged becomes a possibility, the High Court Division will not quash the pending proceedings on the ground that there is no evidence for the court to go upon." Thus from the above quotation it is clear that it is not the function of the Court to examine the evidence on record and come to its finding as to the genuineness of the case. As in the present case charge-sheet has been submitted holding that a prima facie case has been made out against the deceased persons, we do not find any reason to quash the proceeding. Abdul Mannan Vs. State (1985) 37 DLR 38.

 

i 265.  Question  raised Question which rests on decision upon facts not having been raised before the trial court cannot be allowed to be raised for the first time on appeal before Appellate Division of the Supreme Court.

The contention relating to the competency of the police officer who investigated the case againsl the petitioner, was not raised cither before the Trial Court or before the High Court and since this contention touches upon a question of fact, namely, whether Investigating Officer had obtained permission from a Magistrate of the First,Class to investigate it is liable to be rejected as the factual position is not known. Jamadar Khan Vs. Stale (1975) 27 DLR (AD) 35.

 

—Question of limitation docs not arise in criminal prosecution—Mere delay is no ground to quash proceeding u/s 561A Cr.P.C. Md. Shafiqullah Vs. The State (1981) 33 DLR 297.

 

266.  Reason  to suspect

It is not enough to show that there is reason to suspect that the articles found to have been stolen or fraudulently obtained. Something more than reason to suspect is necessary and that something is "reason to believe." (1950) 2 DLR 233.

 

267. Reasonable  doubt

If an accused person is able to establish by evidence or if the prosecution evidence itself presents such features as go to establish the existence of a reasonable doubt regarding the requisite intention in a case of murder, then the prosecution must necessarily fail. Sqfdar All Vs. Crown (1953) 5 DLR (PC) 107.

 

268.   Reasonable   facilities Reasonable facilities to conduct the defence case

In a case u/s. 302 of the Penal Code, where the normal sentence is death, it was all the more necessary that the newly engaged Lawyer should have been given all reasonable facilities to conduct the defence case properly. By refusing to allow the prayer of the defence Lawyer, the learned Additional Sessions Judge has exercised judicial discretion erroneously to the prejudice of the accused persons in their defence. Retrial is not intended to enable the prosecution to improve upon the evidence led at the original trial. State Vs. Abdul Gazi (1981) 33 DLR 79.

269.   Rebuttal

Defence right to rebut—The defence asked for an opportunity to rebut the evidence of some prosecution witness who had been recalled and examined by the High Court at the appellate stage to elucidate certain points, but the prayer was refused.

Held: The High Court did not exercise its discretion properly. All Vs. Crown (1952) 4 DLR (FC) 551(559 l.-h.col.)

 

270.   Re-enactment

Re-enactment of an expired Ordinance by another Ordinance; whether constitutional, it being contended that re-enactment of an expired Ordinance was unconstitutional as only the legislature could convert such an Ordinance into an act. Rajab Alt Bepari Vs. Province of East Pakistan (1958) 10 DLR 385.

 

271.  Re-examination  and  re-assessing evidence

Re-examination and re-assessing evidence in the judgment of the High Court Division. Leave was granted to re-examine and reassess the entire evidence for the ends of justice because of the manner in which the appeal was disposed of by the High Court. Aijuddin Matbar Vs. State (1979) 31 DLR (AD) 101.

 

111.   Re-investigation

After submission of charge-sheet the Police can not ask to cancel the same and reinvestigate the same case nor the Court can direct the police to reopen the investigation. Sultan Ahmed Mathar Vs. The State (1985) 37 DLR 185.

 

273.   Rehearing

It being found that trial has been vitiated occasioning failure of justice, the only order that could be passed is one of acquittal—It is wrong to send the case for rehearing. Nasiruddin Vs. Appellate Tribunal (1979) 31 DLR (AD) 310.

 

274.  Rejection  of Final Report

Case exclusively triable by Sessions Judge— Final report submitted by the Police and the case-record submitted before the Sessions Judge who however directed a fresh judicial enquiry by a Magistrate into the matter. Held: Sessions Judge could either accept or reject the final report but could not direct fresh enquiry. Kaiser Ahmed Vs. State, (1983) 35 DLR 370.

 

275.   Relief

Relief cannot be granted to non-appealing accused. One of the two convicted men on ,a similar charge got relief in the Supreme Court, the other non-appealing convict not entitled to get relief. Both the accused A & B were convicted and sentenced to transportation for life u/s 302/109 P.P.C. The Supreme Court, on appeal by accused A found'that the offence was one under part II of s. 304 P.P.C. and convicted and sentenced him accordingly. Held : Offence of B who did not file appeal in the Supreme Court would also be governed by the same 'considerations but since he filed no appeal'no relief can be granted to him. M.AJalil Vs. The State, (1969)21 DLR (SC) 429.

 

276. Remand

Remand of a case to the committing Court. When a court can not permit, on prosecution's prayer, remand of a case to the committing court so as to give opportunity to the prosecution to fill gaps in the prosecution evidence. Mina Bibi Vs. Slate (1983) 35 DLR 243.

 

 277. Requirement of law

Requirement of law for production of the accused before a Magistrate after his arrest not observed—Proceedings followed clearly show that arrest and subsequent proceedings were characterised by malafide. Malafides of the proceedings vitiated the trial in the present case. Khondaker Moshtaque Ahmed Vs. Bangladesh (1982) 34 DLR (AD) 222.

 

278.   Retrial

Re-trial is not and should not be treated as a method for enabling the prosecution to improve upon the evidence which was led at the original trial nor should it be resorted to for giving the prosecution a second opportunity of getting the accused persons convicted. But the questipn as to whether there should or should not be a retrial should be based upon an assessment of the evidence already on the record. If that evidence does disclose with reasonable certainty, that an offence has been committed, then the accused should not be allowed to go scot-free merely on a technical ground which renders the trial itself bad. Abdus Salam Vs. State (1960) 12 DLR 100- (1960) PW (Dae) 425.

 

—Re-trial should not be ordinarily ordered unless necessary in the interest of justice and not for the purpose of giving the prosecution an opportunity to fill in the gaps in its casc--Harassment to the accused to be considered. Anis Mondal Vs. State (1958) 10 DLR 459.

 

—Single case against several accused—Ground for re-trial appearing only in respect of some—case to be retried in respect of all. Moonda Vs. Stale (1959) 11 DLR (SC) 32 : (1958) PLD (SC) 275.

 

—Charge which causes prejudice to the accused due to error or irregularity makes out a case for retrial. Ali Akbar Khan Vs. Slate (1982) 34 DLR 94.

 

—Retrial can not be ordered when the prosecution case depends on a retracted confession. Retrial means sending the accused back to trial to face a retracted confession only. The accused appellant had been sentenced to 3 years R.I. and he has already suffered R.I. for 2 years 6 months and 16 days. It will be plainly an act of sheer injustice to make him face a fresh trial and that also to meet a retracted confession only. Ismail Munshi Vs. State (1981) 33 DLR 5.

 

—Retrial of a case when conviction is set aside by appellate court cannot be ordered to enable the prosecution to bring in better evidence for the purpose of finding the accused guilty of the charge. Mina Bibi Vs. State (1983) 35 DLR 243.

 

279.  Retrospective  effect

Powers for trial cannot be conferred with retrospective effect—jurisdiction for trial of criminal cases cannot be conferred on a Magistrate with retrospective effect by a notification by Government. Md. ShamsedAli Vs. Hara Lai (1963) 15 DLR 431.

 

—Retrospective   effect   of  the   statute,

applicability of—Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Rights of the parties arising from facts which come into existence before the passing of a statute, should be presumed to be unaffected by it, unless it is expressly or by necessary implication made retrospective. The full significance and implications of the protection cannot be fully appreciated unless we discover its reason. This is not 'a statutory protection, yet the principle has by virtue of a presumption of fair-play effectively checked encroachments on existing rights. Nabi Ahmed Vs. Home Secretary, Govt. ofW. Pak., Lahore, (1970) 22DLR(SC)'21.

 

280.  Retrospective  operation

Retrospective operation—Law having—will be considered to come into force only on the day on which it was passed. Consequently a trial convicting and sentencing a person when the law having retrospective effect was not in existence will be ultra vires, even though after the trial was over the said I law was passed and the period of trial was also covered by the law with retrospective effect. Rajab Ali Bepari Vs. Govt. of E.Pak. (1958) 10 DLR 385.

 

—The petitioners who were employees of the Khulna Newsprint Ltd. were sought to be tried on a charge u/s. 409 alleged to have been committed in 1964 read with section 5(2) of the Act II of 1947, as it stood amended in 1965.

 

Trial under the amendment in 1965 of Act II of 1947 held illegal since retrospective operation can not extend to intlude offences committed in 1964. Procedural Law can operate retrospectively but not where the employees of the Khulna Newsprint Ltd. are sought to be tried u/s. 21 Penal Code by retrospective operation as public servants under the Amending Act. Majibur Rahman Khan Vs. The State (1981) 33 DLR 83.

 

—The petitioner's contention was that when the offences were said to have been committed namely, in November 1964 they were not public servants within the meaning of amending Act II of 1965, and as such they were not liable to be tried as public servants by the Special Judge under the Criminal Laws (Amendment) Act of 1958. The question is whether the Law amended in 1965 could be retrospectively applied to include offences falling u/s. 5(2) of Act II of 1947 (as stood amended in 1965).

 

Held: If these Laws are procedural in nature they shall apply retrospectively. A Law changing the character of an accused person from an ordinary citizen to that of public servant and providing variation of punishment to such accused person to his prejudice cannot be said to be procedural Law. Amending enactments were not given retrospective operation and hence on the date when the offences were alleged to have been committed by accused petitioners they are not public servants and as such the learned Special Judge had no jurisdiction to try them under Pakistan Criminal Law (Amendment) Act, 1958. Majibur Rahman Khan Vs. The Stale (1981) 33 DLR 83.

 

281.   Revisional   petition

Revisional petition, treated as an appeal with condonation of delay.  Accused convicted and sentenced to terms of imprisonment and fine by the Magistrate under section 30 Cr.P.C. for dacoity—Against that an appeal was wrongly preferred before the Commissioner under the Chittagong Hill Tracts Regulation to affirm the conviction and sentence— Thereafter High Court was moved in revision when it was discovered that no appeal lay before the Commissioner but one straight to the High Court— High Court granted the prayer for treating the revision as an appeal and for condoning the delay. /man AH and ors. Vs. The State (1970) 22 DLR 487.

 

282. Right of appeal against conviction

Right of appeal against conviction, a creation of law. Right to appeal is the creation of a statute and unless this right is, in expressed words, conferred upon a person convicted by a court of law he cannot file any appeal against his conviction. Abdul Halim Mollah Vs. Member, Appellate Tribunal (1979) 31 DLR 364.

 

283. Right of being heard

Right of being heard—The right of a counsel to being heard adequately, in a trial or in appeal given by statute, is an indefeasible right which cannot be transgressed by Courts of justice. It is one of the universal rules of natural justice the breach of which renders a judgment inoperative, irrespective of there being or not being a miscarriage of justice. Jmranulla Vs. Crown (1954) 6 DLR (FC) 65(67).

 

284. Right of every accused

Section 340 of the Code of Criminal Procedure confers a right on every accused person brought before a Criminal Court, to be defended by a lawyer. The accused must be afforded full opportunity to be properly defended and he has a right to be defended by a lawyer of his choice. The denial of this right must be held to have rendered the trial as one not according to law and necessitilted a fresh trial. State Vs. Abdul Gazi(1981)33DLR79.

 

285.  Same  consideration

One of the two convicted men on a similar charge got relief of the Supreme Court—the other non-appealing convict not entitled to get relief. Both the accused A and B were convicted and sentenced to transportation for life under section .302/109 P.P.C. The Supreme Court, on an appeal by accused A, found that the offence was one under Part II of section 304 P.P.C. and convicted and sentenced him accordingly.

Held: Offence of B who did not file appeal in the Supreme Court would also be governed by the same considerations but since he filed no appeal no relief can be granted to him. M.A. Jalil Vs. The State, (1969) 21 DLR (SC) 429.

 

286.   Sanction

Accused no longer a public servant when the Court took cognizance of the offence—Sanction to prosecution not necessary. M.G. Towab Vs. Slate (1982) 34 DLR 390.

 

—Sanction to prosecute a government servant before a charge-sheet is submitted is a precondition—Sanction can be obtained after submission of charge-sheet but before the trial commences. Dr. Muzammel Huq Chowdhury Vs. CMLA. (1980) 32 DLR (AD) 100.

 

287.   Satisfaction

Satisfaction—Whether means 'reasonably satisfied"—Whether courts could substitute their own judgment for discretion of arresting authority, Md. Hayat Vs. Crown (1951) 3 DLR (FC) 172 (180).

 

—The High Court is not competent to enter into the question of the satisfaction of the Governor, as regards the detention of persons under the statutory authority and on the complaint that the detention was malafide, when there is order on the record showing that it was made on the satisfaction of the Governor. K.Hussain & A. Rashid Tarkabagish Vs. Govt. of East Bengal (1952) 4 DLR 472.

 

287A. Self-searched out and self-invented   circumstances

If Self-searched out and self-invented circumstances like time factor be allowed to rank as mitigating circumstances it will amount to refusal to administer justic according to law. If this impression is allowed to prevail in society, it will no doubt help perpetuating injustice. Nawsher All Vs. State (1987) 39 DLR 57.

 

288.   Sentence

May be reduced by the Federal Court-When a matter of principle involved. (By majority of Court, Akram, J..contra) Federal Court may reduce sentence where a matter of principle is involved. Sessions Judge convicted the accused under section 304, Part I.P.P.C. and sentenced him to seven years' rigorous imprisonment—Chief Court, in appeal, while unable to alter conviction under section 304, Part I, to one under section 302 maintained conviction under section 304, Part I, but enhanced the sentence to transportation for life.

 

Held : The procedure adopted displayed a grave error of principle. The sentence awarded by the Chief Court could not have been regarded as having been judicially imposed (Akram, J.-The question of adequacy of sentence is not for the Federal Court to determine). Rafique Vs. Crown (1955) 7 DLR (PC) 116.

 

—Enhancement of sentence by High Court (in a reference made by the District Magistrate) while appeal against original conviction was pending before the Sessions Judge does not prejudice the accused.

Petitioner along with another were convicted by Ihe trying Magistrate and they preferred an appeal to the Sessions Court. While it was pending, the District Magistrate made a reference to the High Court for enhancement of the sentence awarded to the accused as he considered the sentences to be inadequate. The High Court accepted the recommendation of the District Magistrate. When the High Court finally disposed of the reference, the appeal before the Sessions Court was not pursued as it had become infructuous. But the petitioner moved the Supreme Court with a plea that enhancement of the appellant's sentence by the High Court while appeal was pending before the Sessions Court amounted to a denial of a relief to which he was legally entitled. But the Supreme Court overruled the contention oh the ground that when a notice is received by an accused to show cause against the enhancement of sentence under section 439(6) Cr.P.Code, in replying to it the accused is also entitled to show cause against his conviction. So if the sentence is enhanced, the conviction is evidently maintained. Hence question of denial of legal relief to the convict does not arise. Shamsher, son of Gulfaraz Vs. The Slate, (1969) 21 DLR (SC) 41.

 

—Sentence—Death sentence unreasonably delayed—An extenuation circumstance for commutation of the sentence.

 

When execution of the death sentence has been unreasonably delayed, section 376 of the Code of Criminal Procedure requires the High Court to consider as to whether the death sentence is to be confirmed or any other sentence warranted by law is to be passed. Death sentence should not be confirmed unless at the time of hearing of the Reference the High Court feels that the death sentence should be carried out. State Vs. Abdur Rahman (1975) 27DLR 77.

 

—Enhancement of sentence

The accused had remained in custody during trial for more than 3 years. The High Court discharged the notice for enhancement. Ghulam Ahmed Khan Vs. State (1958) 10 DLR (WP) 55.

 

—Enhancement of sentence—principles—Discretion of trial Judge in the matter of sentence, and of the High Court in revision application for enhancement by private party not barred—Lesser penalty for murder. Abdul Rashid, CJ.-So long as the trial Court performs its duty in this respect in accordance with law, the High Court should not enhance the sentence. If the reasons given by the Sessions Judge in inflicting the lesser punishment arc perverse, the High Court could not hold that the discretion vested in the learned Sessions Judge had been exercised in an arbitrary manner. In such circumstances, the High Court would be justified in enhancing the sentence.

 

Ordinarily the Federal Court is reluctant to interfere on a question of sentence. If, however, the enhancement of sentences by the High Court raises a question of principle, the Federal Court would not hesitate to lay down correct principles. Talib Vs.  Crown (1955) 7 DLR (FC) 92.

 

—Practice of the Federal Court with regard to question of sentence.

It is not the practice of the Federal Court to interfere with the sentence passed on the accused which is essentially a matter of discretion for the Court of Appeal below. 5. fsrar Hosain Vs. Crown (1955) 7 DLR (FC) 19 .

 

—Sentence of death commuted where what happened immediately before inflicting the fatal wound causing death is unknown. Rahij alias Ghatoo Vs. The State (1983) 35 DLR 439.

 

—Sentence : Sentence of death commuted to transportation for life in this circumstance of the case one being that he participated in the liberation war as Freedom Fighter. Abdur Rouf Vs. State (1986) 38 DLR 188.

 

1889

Criminal Trial Synopsis-3

Citation: (1971) 23 DLR 145, (1975) 27 DLR (SC) I, (1983) 35 DLR 373, (1956) 8 DLR 296, (1956) 8 DLR 446, (1956) 8 DLR 526, (1955) 7 DLR (FC) 253, 6 PLD (FC) 103, (1958) 10 DLR (SC) 77, (1958) 10 DLR (SC) 77, (1958) 10 DLR 128, (1980) 32 DLR 298, (1958) 10 DLR

Subject: Criminal Trial Synopsis

Delivery Date: 2018-09-30

289.   Service  of show-cause   notice

Service of show-cause notice, on a person sought to be proceeded against before making a complaint regarding commission of offences under sections 196 and 471 P.P.C. is not mandatory— Non-service of such notice docs not vitiate the proceeding. Prafulla Chandra Ray Chowdhury Vs. Aboo YusufMd. Idris, (1971) 23 DLR 145.

 

290.  Sessions Judge's duty

When an accused charged with an offence of capital punishment is before him not being in a position to engage his own defence lawyer. Abdur Rashid Vs. Stale (1975) 27 DLR (SC) I.

 

291.   Sexual   offence

In sexual offence where the woman is grown up corroboralion of her statement is ordinarily required—but such corroboration is insisted upon where the victim is a minor. Abul Quddus Vs. The State (1983) 35 DLR 373.

 

292.   Showing   of  leniency

Showing of leniency, when improper. The mere fact that a man who has taken part in a premeditated murder is an old man of 60 is no ground for taking a lenient view. / PCR 83 (88) l.-h. col.)

 

293.   Signature

Obtaining signatures in Court—The practice of obtaining signatures in Court for the purpose of comparison is an unsafe procedure for arriving at a right conclusion inasmuch as a man in the Court can write in a different way to defeat the very object in view. Such a practice has always been deprecated by the High Courts and the Privy Council. Mokbul Ahmed Vs. State (1956) 8 DLR 296.

 

294.   Simultaneous  trial

Simultaneous trial of two cases, one being a counter—case to the other, is a better course, but failure to do so is not illegal. Kashem Ali Vs. State (1956) 8 DLR 446.

 

295.  Special  Court

Manned by military personnel—Special Courts manned by military personnel must function judicially and not arbitrarily. Moslemuddin Sikder Vs. The Chief Secretary. Govt. of East Pak. (1956) 8 DLR 526.

 

296.   Special  jurisdiction

Courts exercising special jurisdiclion--No appeal to the Crown. Md. Nawaz Vs. Crown (1955) 7 DLR (FC) 253.

 

297.   Special   leave   , Special   leavelimitation   to All petitions (including petitions by the Crown) should be lodged in Court within 30 days of judgement sought to be appealed from. 6 PLD (FC) 103.

 

—Special leave to appeal—Special leave to appeal (criminal case) is granted to see whether the ocular evidence against the convicted man could be accepted. Uyyat Vs. State (1958) 10 DLR (SC) 77.

 

—Leave to appeal granted on one ground—the appeal might be heard on another ground. Hayat Vs. Slate (1958) 10 DLR (SC) 77.

 

298.   Special  Magistrate

Special Magistrate under the East Pakistan Food (Special Courts) Act (X of 1956) is not a Magistrate under the Code of Criminal Procedure and his orders are not appealable. Not a Magistrate under the Code of Criminal Procedure and, therefore, his orders are not open to revision by the High Court under sec. 439, Cr.P.Code. Hari Meah Vs. State (1958) 10 DLR 128.

 

299.   Specific   allegation

In the face of specific allegation of rape and kidnapping against police constables, referring their case tp higher Police authority for departmental action is a wrong course. State Vs. Md. Osman Ghani (1980) 32 DLR 298.

 

300.  Stare  decisis

Stare decisis, Rule of—Applicable when for 28 years a course of procedure was uniformly followed. Gotam Mohiuddin Vs. Crown (1958) 10 DLR (SC) 97.

 

301.   Statement

Statement—Voluntary statement, before police—in the course of investigation, confessing offence—Precaution that should be taken by police. When persons accused of serious offences, have had themselves presented before the Police in the course of the investigation by a respectable person of the village, they usually do so in order to avoid the rigours of an investigation and must be prepared to satisfy the investigating officer that they arc indeed the persons for whom the police had been searching, so that the investigation need not be continued further. It is not unnatural that such person should make incriminating evidence, so that further pressure upon them or their relations should cease. No responsible Police Officer would discontinue his investigation merely because persons had presented Ihcmselves before him and cither admitted their involvement or for the reason that they had been named in the initiaLreport. He would need to satisfy himself that he had enough evidence to make out a complete case. It should be remembered also that in this case the motive shown is satisfaction of honour. Sardar All Vs. The State, (1967)19 DLR (SC) 113.

 

—Statements of accused

The statements of each prisoner are evidence in against himself only and are inadmissible against his fellow-accused, and consequently the only safe method of testing the strength of a case for prosecution is to take each man's case separately; neglect the evidence of others and ask whether the conflicting and inconsistent nature of the matters alleged and persons implicated combined with the' admission is enough to justify a verdict against him. Wall Md. Vs. King (1951) 3 DLR (PC) 373.

 

—Statement unconnected with the accused's conduct not admissible.

Statement of an accused person cannot be admitted u/s. 8 when they are unconnected with any conduct of the accused. Mere statements are not such evidence as may be admissible under section 8. Jagnath Biswas Vs. State, (1957) 9 DLR 508.

 

—Statement made in presence of an accused

It is true that a statement made in presence of an accused person even upon an occasion which should be expected reasonably to call for some explanation or denial from him is not evidence against him of the facts stated, save so far as he accepts the statement so as to make it in effect his own; but the acceptance of the statement may be either by word or by conduct or action or demeanour. Md. Yusuf Vs. Crown (1955) 7 DLR 302 (312 rl-h col.)

 

—Statement    of    a    co-accused  is not

evidence because it is not made on oath and also not subjected to cross-examination—Confessional statement of a co-accused cannot be basis of conviction of another accused. Though admissible, it is much weaker than the evidence of an approver. It is the established rule of evidence as well as rule of prudence that confessional statement of co-accused shall not be used as the sole basis of conviction in the absence of independent corroborative evidence. Emran All Vs. State (1985)  37 DLR 1.

 

—Statement of facts in a statute. No sanctity attaches to statements of fact occurring in a statute. Statements of fact contained documents appended to Bills never become part of the law and are only intended, to serve as an aid to legislators and to the general public in following the what may be described as the purport of the proposed measure. Such statements of fact cannot ordinarily be regarded as per se, relevant evidence in a judicial proceeding. Fazlul Quader Chowdhury Vs. Crown (1952) 4 DLR (PC) 104.

 

—Statement  of Police  officers.

The statement of police officials which is not their own knowledge but from an inquiry made during their official duty is inadmissible. Abdul Majid Vs. Crown (1953) 5 DLR (WPC) 109 (112 l-h.col.)

 

302.  Stay of criminal cases

Stay of criminal cases pending decision of civil suit. Civil suit by the wife for declaration that marriage between the parties had been repudiated—-Criminal proceeding started by husband under section 498 P.P.C.—Wife's application for stay of criminal case till the decision of the civil suit not maintainable. Msl. Munir Vs. Ilabib Khan (1956) 8 DLR (WPC) 25.

 

303.  Stay of criminal proceeding

Stay of criminal proceeding when proper. Where, the decision in the civil suit is likely to have a direct and vital bearing upon the alleged guilt or otherwise of the accused in the criminal case or render his prosecution, for all practical purposes infructuous, the proper course is to keep the criminal case stayed.

Where there is the chance of prejudice to the accused if the criminal case against him were allowed to proceed and be disposed of before the civil suit, and should the case thus end unfavourably against him that adverse decision is likely to prejudice him in his defence in the civil suit as well and in such circumstances the criminal case should be stayed. Dhirendra Chandra Chakravarty Vs. Nani Gopal Chakravarty 1961,13 DLR 215 : (1962) PLD (Dae.) 11.

 

—Stay of criminal proceeding pending civil Suit—when can be allowed—If the decision in the civil suit is likely to have a direct and vital bearing upon the alleged guilt or otherwise of the accused, the proper course is to stay the criminal case. Numl Hoque Vs. M.ll.Ali, 21 DLR 703.

 

304.   Stay the  disposal of criminal  case

There is no occasion at all for a Magistrate to stay the disposal of a criminal case and to await the result of a title suit, instituted after charges had been framed in the criminal case, in order to declare that a solenamah, executed two years previously, was a fraudulent one. (1950) 2 DLR 136.

 

305.   Subordinate  Court's responsibility

Subordinate Court's responsibility in relation to order passed by the High Court. The orders passed by High Court arc meant to be complied with and if any occasion arises as to meaning and interpretation of an order passed by this Court, it is only this Court which can do so. For the subordinate Courts to arrogate to themselves the task of interpreting an order of this Court is, to say the least, most unfortunate and unbecoming. Bangladesh Vs. Khalilur Rahman (1980) 32 DLR 169.

 

306.  Summary Military  Court

The accused were tried and acquitted by a Summary Military Court (in September 1971) which consisted of Officers of Pakistan Army. They can not be retried on the same charge alter the liberation of Bangladesh. Abdul Jabbar Vs. Govl. of Bangladesh (1981) 33 DLR 230.

 

307.  Supreme  Court

Non-appealing accused found to be entitled to relief which the accused appellant was found to be entitled and the Supreme Court thereupon directed that he should prefer a Jail appeal from Jail to the Supreme Court. Sadiq Vs. The Stale, (1967) 19 DLR (SC) 459.

 

—Supreme Court's judgment

Supreme Court's decision overrides the earlier decisions of the Privy Council. State Vs. Abdur Rahim(1958)10DLR61.

 

308.  Suspension  from  practice

Advocate—Suspended from practice by the High Court for including, in memorandum of appeal from the Court to the Federal Court, grounds, viz, (1) that additional evidence was taken by the High Court to fill gap in the prosecution case as well as to justify another judgment of High Court which are reversed by the Federal Court, (2) that the remarks of the Judges of the High Court "betray a lack of knowledge of the elementary principles bearing on the administration of criminal justice" - Jurisdiction as to professional misconduct in situation arising in case—Exclusively that of Federal Court. (1954) 6 DLR (FC) 216 (232-236).

 

309.   Suspicion

Suspicion however strong is not enough to draw an inference of guilt. The fact of mere presence of movement in a suspicious manner of the accused persons near about the place where the property was concealed docs not justify an inference that these accuscd«must have retained the property there or participated in the act of concealment. Rekalullah Vs. State (1961) 13 DLR 750; (1962) PLD (Dae.) 261.

 

—Original Medical Certificate not filed but a duplicate of it—Suspicious. All Ahmed Vs. State (1986) 38 DLR 299.

 

310. Taking cognizance of an offence

A Magistrate applying his mind to the facts of the case in order to take action in the case lakes cognizance. Taking cognizance is a subjective act and it merely means that the Magistrate applied his mind to the facts of the case. There is no set form for taking cognizance of an offence and it need not be expressed in so many words. Wherever a Magistrate after applying his mind to the facts of the case forms an opinion that an offence has been committed and the accused should be prosecuted for committing that offence and take certain positive steps towards that end, the Magistrate should be deemed to have taken cognizance of the offence. Sharfuddin Ahmed Vs. Home Secretary (1975) 27DLR 658.

 

311. T.I. Parade

T.I. Parade held for identification of accused is not a judicial proceeding—While an officer disobeys the order of a Magistrate to bring an accused person for T.I Parade the officer disobeying that ordeY is not guilty of contempt of court, it not being a judicial proceeding and therefore he cannot be hauled up u/s.228 of the Penal Code.

 

The Police Regulation No.282 shows that the T.I. Parade can be conducted in the presence of-a Magistrate or of a Sub-Registrar or if no such person was available, in the presence of two or more respectable persons not interested in the case. The language used in the Police Regulation clearly indicated that the proceeding envisaged under the said Regulation was not a judicial proceeding. The Regulation speaks of a proceeding to be conducted in the presence of and not of a proceeding to be conducted by the Magistrate. When the Regulation in question empowers and authorises persons other than a Magistrate for the purpose of the proceeding, in such circumstances the proceedings cannot be called a judicial proceeding. In such view of the matter, even if the proceeding was conducted in the presence of a Magistrate, it cannot be said that he was acting as a public servant in a judicial proceeding. The T.I Parade not being a judicial proceeding sand as such the proceeding instituted against the accused petitioner under section 228 of the Penal Code cannot be sustained in law. State Vs. Taj Mohammad (1977) 29 DLR 355.

 

—Test identification parade. Factors which should be kept in view when holding T.I.P.

It is an important factor whether all the persons identified were prcviosuly known to the witnesses or were perfectly strangers to them. In the absence of test identification parade the evidence of the witnesses identifying the accused in Court should not be given any importance. State Vs. Abdur Rahman (1975) 27 DLR 77.

 

—-Objection as absence of T.I.P. may be explained with sufficient reasons.

In all cases where objection has been taken on behalf of the condemned prisoners to the absence of T.I.P. there was valid and sufficient reason for not holding the test identification parade. State Vs. Badsha Khan (1958) 10 DLR 580.

 

—Test Identification parade held by Police Officers. Identification parades when held by police officers and not by Magistrates arc very weak type of evidence specially where it is not shown that the services of a Magistrate coutd not be made available. Wazif Vs. State (1961) 13 DLR (WP) 5; 1960 PLD (Kar)674.

 

—Test identification parade—held without a Magistrate being present to supervise—of little evidentiary value. The Court is to act on the statements of witnesses in Court to the effect that they had seen the accused committing an offence. Md. Bashir Alam Vs. Slate (1958) 10 DLR (SC) 21.

 

312. Trap

Statement of accused made to Magistrate conducting "trap" proceedings—Admissible at trial—Investigation of case only begins after Magistrate has. handed over papers to police— Criminal Procedure Code, sections 149, 157,161, and 162—Magistrate's taking part in raid—not objectionable. 1957 PLD (Lah)562.

 

—The prosecution should see that in arranging this trap they do not deviate from the fundamental principle of justice. It should also be borne in mind" that the police which is an organisation entrusted by the Slate to maintain law and order and help in the administration of justice should not indulge in doing things which have not been authorised by any Act. The police has also a duty to the State and the citizens. Abdur Rahman Vs-. State (1975) 27 DLR 269.

 

—Trap case—Evidence of witnesses in trap case—Utmost care needed to ensure dependability and trustworthiness of such witnesses in respect of their deposition—Presence of independent witnesses warrants truth and reliability of the case and shields the police against charge of overzealousncss in their conduct of the case. Abdul Jabbar Vs. The Slate (1985) 37DLR 278.

 

—Trap laid for discovery of crime— Magistrates are made to witness the incident of trap—such practice condemned. It is particularly unfortunate that in a case where traps are arranged by the police the Magistrates arc involved in the trap party as a member of the trap. This practice has been disapproved by the High Courts of this country and inspite of that the prosecution thought it fit to take a Magistrate in the trap party. In this particular case it is unfortunate to find that the Magistrate's evidence on this point has been contradicted by the Investigating Officer. This practice of utilising the Magistrate for such purpose has been criticised in the case of Nanr Ahmed Vs. Emperor A.I.R. 1936 (P.C.) 253. Abdur Rahman Vs. State {1975) 27 DLR 268.

 

—"Trap" laid to catch bribe-taker red-handed-Device condemnable, though unexceptionable from a purely legal point of viewt Magistrate's acting as witness to "trap"—Whether desirable—Evidence of giver of bribe—Necessity of corroboration. 7957 PL(Lah)473.

 

—"Trapping"—Sending police officers to commit an offence in order to trap other offenders-Police Officers committing such offences not protected from prosecution for same—Asking Magistrates to accompany police to "witness such traps—Condemned. 7956 PLD (Kar) 273.

 

—Trap witnesses—Evidence requires careful scrutiny. 1949 PLD (Lah) 414.

 

313. Travesty of the judicial procedure.

Facts emerging from the circumstances of the present case disclose highly unsatisfactory state of affairs—compliance with the known procedure of Law completely disregarded. The man (said to be an accused in the present case) treated in a manner resulting ultimately, according to the defence, in his escape from the custody of JRB with the FIR lodged 3 days after his escape, with no timely report to the relevant authority about the arms said to have been discovered ail of which make a complete travesty of the judicial procedure by the personnel of the armed forces as well as by the JRB. 5. Mohsin Sharif Vs. Govt. of Bangladesh (1975) 27 DLR 186.

 

314.  Trial

The petitioners who were employees of the Khulna Newsprint Ltd. were sought to be tried on a charge u/s. 409 alleged to have been committed in 1964 read with section 5(2) of the Act II of 1947, as it stood amended in 1965. Trial under the amendment in 1965 of Act II of 1947 held illegal since retrospective operation can nol extend to include offences committed in 1964. Procedural law can operate retrospectively, but not where the employees of the Khulna Newsprint Ltd. are sought to be tried u/s. 21 Penal Code by rcstrospcctivc operation as public servants under the amending Act. Majibur Rahman Khan Vs. The State (1981) 33 DLR 83.

 

—Trial not conducted in accordance with law. Held— Trial vitiated irrespective of the question of prejudice. State Vs. Abdur Rahim Sikder (1958) 10 DLR 61.

 

When the trial actually began—If the case was not taken out of the trial list on the application of the accused in the case the trial would have to be held under the old law. Mohitullah Pk.'Vs. The Slate (1986) 38 DLR (AD) 240.

 

-Trial of a case docs nol include pronouncement of the judgment. Idris Ilowlader Vs. Slate (1986) 38 DLR 233.

 

—In this case order of acquittal of the accused person be revised and the accused be tried lawfully— Appeal in this case being incompetent the proceedings were converted into a rcvisional proceeding. Moulana Ahmadullah Vs. The Stale (1986) 38 DLR 82.

 

315.  Simultaneous  trial of two cases

Simultaneous trial of two cases, one being a counter case to the other, is a better course, but failure to do so is not illegal. Kashem Vs. Slate (1956) 8 DLR 446.

 

Simultaneous hearing disposal of both the cases desirable. Alauddin Mollah Vs. State 40 DLR (AD) 282.

 

316. Trial by Jury.

Trial by jury—System of trial by jury by a body of illiterate or semi-literate persons completely unsuited and leads often to mis-administration of justice. Shamsuddin Sardar Vs. State (1959) 11 DLR (SC) 365 :1959 PLD (SC) 269.

 

—Two of the jurors Anglo Indian gentlemen— Public Prosecutor on suggestion of Judge handed over written address to Anglo Indian jurors who said that they did not fully understand Bengali—Accused arc prejudiced by procedure adopted. 53 CWN (1DR) 144.

 

317. Trial held without the aid of assessors

Trial held without the aid of assessors or without the minimum number. There is no real distinction in principle between a trial without the aid of assessors and a trial without the minimum number required by law. Haroon Vs. Crown (1951) 3 DLR (FC) 408.

 

318. Trial, Place of Magistrate's discretion in the matter of choice of the place of trial other than the court should be announced by a formal order.

A Magistrate can in his discretion hold trial at any place other than the Court house but in that case, it is essential that he should pass a formal order declaring the place where the trial would be held. Unless a formal order is passed declaring that the trial would be held in any specified place, the accused persons are likely to be prejudiced inasmuch as, in that case, they arc deprived of the opportunity of having recourse to higher authority for redress, if they feel aggrieved by such order. Md. Rezzaqual Islam Vs. The State, (1968) 20 DLR 461.

 

319. Trial Court's estimate

Trial Court's estimate in the credibility of witncsse's evidence—Appellate Courts slow to disturb that. Tahirullah Vs. Crown (1964) 6 DLR 463.

 

320. Trial or a case

The trial of a case begins with the framing of the charge and ends with the passing of the judgment. Joynal Gazi Vs. Slate (1983) 35 DLR 422.

 

321. Trial in the accused's absence

Trial in the accused's absence is illegal when the accused has not absconded. But his failure to appeal before the trying Court is due to the fact that the Magistrate and Sessions Judge did not mention any date on which the accused was to appear in court. Kala Miah Vs. State (1984) 36 DLR 263.

 

—In a trial, some accused were convicted and others acquitted by the Magistrate—upon remand, the Magistrate upheld conviction of the person whose case on appeal remanded to him and in writing out judgment repeated his earlier order of acquittal. Held—such repetition of the word "acquittal" in the judgment does not vitiate the trial. Abdul Jabbar Vs. Rabeya Khalun (1970)22 DLR 410.

 

—Trial of the accused, held by the Sessions Judge with the aid of assessors but before the accused pleads not guilty the assessor system of trial abolished; Held : To the accused accrued no vested right of being tried with the aid of assessors and therefore, in such trial the new procedure shall become applicable. (The accused in the present case was committed to the Sessions Court for trial on 6.6.63 when session trial were held by a Session Judge with the aid of assessors. By a Provincial Amendment (W.Pak.Act XVII of 1964) which came into effect on 1.4.64, the procedure for trial with assessors was done away with. It was contended that the accused had a vested right to be tried with the aid of assessors when he was committed on 6.6.63 when amending law did not come into force.) Khoka Vs. The State (1973) 25 DLR.181.

 

—Trial of a criminal offence adjourned several times for absence of the accused. Moulana Ahmadullah Vs. The State (1986) 38 DLR 82.

 

—On 5.10.82 the accused was absent and also P.Ws were absent—The trying Magistrate expunged the depositions of these P.Ws. on the plea they were not present or tendered for cross-examination. Held: This is illegal. Moulana Ahmadullah Vs. The Slate (1986) 38 DLR 82.

 

—This being a warrant case the Magistrate should have ordered for production of the accused as ' well as of P.Ws. on a day fixed. Moulana Ahmadullah Vs. The Stale (1986) 38 DLR 82.

 

322.   Two   cases

consolidation-disposal   together. Of the same incident Police case gives one version, complainant gives a different version. How the Trial of both the cases in the same Court to proceed. A fair procedure to be adopted in the disposal of the two cases would be for the learned trial judge to lake up the complaint case first for trial. During that case the learned trial judge may call the witness mentioned in the police chalan if they were not already examined on behalf of the complainant, as Court witnesses u/s. 540A of the Cr.P.C., so that they can be cross examined by both the parties. If the trial results in a conviction, it will be for Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court u/s. 494 of the Cr.P.C. in the police chalan case. If the first case ends in an acquittal the Public Prosecutor might still have to I consider whether the police version has not been so J seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution, otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilising the material placed on record at the earlier trial, by way of cross examination of the relevant witnesses, as permitted by law. Kaikaus J. (contra)—There is no ground for holding that the consolidation of criminal proceedings is open to any objection and the two cases in the present instance should be consolidated and be heard and disposed of together. Nur Elahi Vs. Slate (1966) 18 DLR (SC) 474.

 

323.  Uncorroborated  evidence

Uncorroborated evidence of a victim girl when accepted for conviction, reason thereof should be slated (Evidence Act 1872 s. 133.) Abdul Quddus Vs. The Slate, (1983) 35 DLR 373.

 

324. Undefended accused

Specially in cases when an offence is punishable with death sentence—Court's duty to appoint suitable lawyer for defence and further that he is properly equipped having necessary papers to prepare himself having sufficient time at his disposal for the purpose. Stale Vs. Abdur Rahman (1975) 27DLR 77.

 

325.  Utilizing  the  materials

Utilizing the material placed on the record at the earlier trial, by way of cross-examination of the relevant witness, as permitted by law. Nur Elahi Vs. Stale (1966) 18 DLR (SC) 474.

 

326. View of the place of occurrence

Inspection of the scene of occurrence. View (Inspection) of the scene of occurrence by jury—A simple view by a jury is a view in which no witnesses arc present and such a view is quite proper—but a view in which, witnesses are present to explain the things they deposed to but in which the Judge was not present, vitiates the trial. Tameshwar Vs. Queen (1957) 9 DLR (PC) 688.

 

—View of the place of occurrence—Accused person does not choose to attend the view of the place of his own accord—He cannot complain of prejudice. Keramat Vs. Queen (1957) 9 DLR (PC) 612.

 

327. Warrant case.

Tried summarily—Magistrate's power to try summarily an offence under section 403 P.P.C.— Value of misappropriated property above limit prescribed under section—summary trial, held illegal. 8 PLD(Kar) 359.

—This being a warrant case the Magistrate should have ordered for production of the accused as well as of P.Ws. on a day fixed. Moulana Ahmadullah Vs. The Slate (1986) 38 DLR 82.

 

328.  Warrant of arrest.

If the warrant of arrest had not been executed till the receipt of the High Court's stay order, the Magistrate should recall the warrant of arrest, otherwise it might be interpreted as taking further proceeding. Azizur Rahman Vs. State (I960) 12 DLR 489.

 

329.   Weapons of crime

Weapons of crime—not at the spot and delay caused in sending them to the expert—weakens prosecution case. Wazir Vs. Stale (1961) 13 DLR (WP) 5 :1960 PLD (Kar) 647.

 

329A. When  not incompatible  with the innocence of the accused

Facts and circumstances disclosed in the evidence are not incompatible with the innocence of accused Zubair and that the contrary view held by the learned Tribunal is entirely wrong and the explanation given by Zubair for his conduct is reasonably true and even if the prosecution case is fully believed the guilt of Zubair as abettor has not been established. State Vs. Makbul Hossain (1974) 26 DLR 419.

 

330. Withdrawal of a case

Withdrawal of a case as distinguished from composition of an offence. Withdrawal and composition are the distinct concepts. Withdrawal is the act of the complainant whereas the composition of an offence requires the co-operation of both the parties. Whether a petition is one for withdrawal or compromise, is to be judged from the fact of each case. Md. Joynal Vs. Md. Rustam All (1984) 36 DLR (AD) 240.

 

— Withdrawal of criminal case against freedom fighter.

The Government circular of October, 1980 makes it clear that the intention of the Government was to relieve the Freedom Fighters from anxiety and unrest due to cases pending against them in which they were often falsely implicated out of enmity by anti-liberation elements. Abdul Mannan Talukder Vs. State (1983) 35 DLR 202.

 

331. Withdrawal of criminal prosecution

Ministry of Home Affairs, Government of Bangladesh, directs withdrawal of criminal prosecution against certain persons charged with commission of offence of murder, etc. acting under the P.O. 16 of 1973, the accusation against them being an occurrence of paddy-cutting and possession of land not with question of liberation struggle.

 

Held : Withdrawal not authorised by law and improper. The President's Order 16 of 1973 shows that only acts done in connection with the national liberation struggle or for maintenance or restoration of order during the period from 1st day of March, 1971 and 28th day of February, 1972 arc covered by this Order.

In the present case the incident arose out of dispute over paddy cutting and possession of land and had nothing to do whatsoever with any act done in connection with the maintenance or restoration of peace or order as envisaged in the aforesaid P.O.16 of 1973.

 

The order nowhere gives any authority to the Government to either review or rescind its earlier order. Consequently the order passed by the Ministry of Home Affairs directing withdrawal of G.R.Casc No.329 of 1973 in favour of the accused respondents were all done without any lawful authority and arc of no legal effect. Khaliluddin Vs. Govt. of Bangladesh (1980) 32 DLR 88.

 

— Withdrawal from prosecution of any person before charge is framed. Abdul Hakim Chowdhury Vs. Ruhul Amin (1988) 40 DLR 259.

 

332. Withdrawal of a trial

Withdrawal of 'a trial before High Court— Advocate-General representing the Govt. enjoys plenary power of such withdrawal, Court having no discretion. Bakshu Mia Vs. Govt. of Bangladesh (1978) 30 DLR (SC) 229.

 

333.   Witnesses

The mere fact that the eye-witnesses belong to the same sect and are engaged in the same profession to which the deceased was engaged is no ground for rejecting their evidence. Murad All Vs. The Slate, (1970) 22 DLR (WP) 158.

 

—Witesscs examined though not mentioned in the FIR or in the charge-sheet and making serious1 allegation against the accused, cannot be relied on. A wilncss is subject to the same provisions of the Evidence Act in a trial under P.O. No. 8 of 1972. No special procedure has been prescribed in P.O.No.8 of 1972 exempting witnesses from an examination of their credibility. Saad Ahmed Vs. State (1983) 35 DLR 41.

 

—Confrontation of a witness with his previous statement—when found basically wrong in the present case. Bangladesh Vs. Abed All (1984) 36 DLR (AD) 234.

 

—Besides co-accused's confession reliance has been placed for corroboration on the evidence of a witness who reports, after 20 hours, to several prosecution witnesses that the deceased was taken away by the accused and thereafter he was not seen alive. This statement cannot be relied on. Khoka Vs. The State, (1973)25 DLR 181.

 

—Witnesses and the Test Identification Parade

Prosecution witness not acquainted with the accused prior to the occurrence and identification parade not held : the evidence of such witnesses, as to identity of the accused, is not of much value. State Vs. Abdur Rahman (1975) 27 DLR 77.

 

—Testimony of the eye-witness to an occurrence, before it is rejected has lo be considered whether prosecution had a motive to vary the manner of assault. Before discarding the direct testimony in a criminal case it is pertinent to consider if there was any necessity for the prosecution to attribute weapons to the accused different from those which they had actually used in the assault. If there be no ostensible reason for giving such a twist to the description of the assault then there would be no justification to disbelieve the eye-witnesses on mere surmise. Experience shows that an injury caused by the wrong side of a hatchet or even a kassi on the head can be as much fatal as the injury caused by the sharp side. No positive or conclusive finding can therefore, be rested on the view that if the accused intended to kill they would have preferred to use the sharp side of a hatchet or another similar weapon. Lai Khan Vs. Muhammad Sadiq, (1968) 20 DLR (SQ306.

 

—There is something dramatic when one's own case is proved from the mouth of. the witnesses of the opponent. Muslimuddin Vs. State (1986) 38 DLR (AD) 311.

 

—No finding on a charge of capital offence can be safely based on the statements of an untruthful witness, even though corroborated by other witnesses. Moniruddin Sana Vs. State (1988) 40 DLR 402.

 

—In a warrant case when the witnesses are examined by the prosecution and charge is framed, the Magistrate can pass no order except that of the order of conviction or acquittal. Mobarak All Gazi Vs. Makbul Sardar, (1971 23 DLR 96.

 

—Statement of an  interested witness—

though not usually accepted without corroboration, yet it is not an inflexible rule. Corroboration docs not necessarily mean 'words' of an independent witness—Corroboration by an eyewitness is not necessarily of same probative value as in.the case of an accomplice. Corroboration by circumstances may be inferred from- the number of culprits as consistent with the kind of crime and the persons named were expected to join in attack—Practice of the Supreme, Courtis to interfere with appreciation of evidence by the High Court. Nazir Vs. State, (1962) 14 DLR (SC)159.

 

—Fact of relationship, no ground to discard testimony of witnesses in a case unless there is internal marks of falsehood in their testimony. HoshiarAli Vs. The State, (1969) 21 DLR 575.

 

334. Witnesses  tendered  by prosecution

Witnesses tendered by prosecution—explained. A witness may be tendered by the prosecution if his evidence is not of much importance or his evidence will make unnecessary addition to the evidence already adduced. Sometimes a witnes is tendered by the prosecution from motive, and not examined lest something undesirable comes out of his lips. Shamsul Huq Vs. The State (1986) 38 DLR (AD) 75.

 

335. Working days

"Working days" to be counted in determining the time for disposal for criminal case— "Working days" mean the days on which a Judge works as such. So, the days when the learned Sessions Judge was on leave and outside the stations should not be regarded as "Working days" of the learned Sessions Judge. Akbar All Vs. State (1988) 40 DLR 29.

 

1890

CRUELTY TO WOMEN (DETERRENT PUNISHMENT) ORDINANCE (LX OF 1983)

Citation: (1986) 38 DLR 348, 40 DLR 161.

Subject: CRUELTY TO WOMEN

Delivery Date: 2018-09-30

CRUELTY TO WOMEN (DETERRENT

PUNISHMENT)  ORDINANCE (LX  OF

1983)

S.6

Offence u/s.6 of the Ordinance is made out if after marriage has taken place the husband causes or attempts to cause death or grievous hurt to the victim wife. Husband or any of his relations if commits any offence u/s.6 after marriage, such person shall be guilty of offence under this section. Salema Khatoon Vs. State (1986) 38 DLR 348.

 

Sections 6 and 10 — Mere allegation made by the wife that her husband (accused) had beaten her on 2.11.1984 while demanding dowry and ousted her from her house, in the absence of any allegation that the accused husband caused op attempted to cause death op grievous hurt to her, will not come within the mischief of Section 6 of the Ordinance. Firoza Begum Vs. Hormuz Ali. 40 DLR 161.

1891

DEFENCE OF PAKISTAN ORDINANCE, 1965.

Citation: (1967) 19 DLR 829, (1967)19 DLR 830, (1967) 19 DLR (SC) 403, (1969) 21 DLR (SC) 1, (1969) 21 DLR(SC) 3, (1968) 20 DLR 1088, (1969) 21DLR 235

Subject: DEFENCE OF PAKISTAN

Delivery Date: 2018-09-30

DEFENCE OF  PAKISTAN

ORDINANCE,   1965.

 

Proclamation of Emergency relates not only to the provisions of sub-clause (a) but also of (b) of article 30(1) of the Constitution. The President having promulgated the Defence of Pakistan Ordinance to meet emergency as proclaimed under Article 30(1), it cannot be presumed that the Ordinance was passed only for the purpose of Article 30(l)(a), It cannot therefore he said that the Defence of Pakistan Ordinance was promulgated only to meet threat of war or external aggression and not the internal disturbances. Rezaul Malik on behalf of Sk. M. Rahman Vs. Government of East Pakistan (1967) 19 DLR 829.

 

—Question is who will decide whether the activities of a person are such as to justify application of special measure contemplated under the Defence of Pakistan Ordinance? Prior to Jilani's case the position was that it was the sole domain of the executive. It appears that even after Jilani's case, satisfaction on the point still continues to be the sole domain of the executive. The only difference made is that the subjective satisfaction of the executive has been made the subject-matter of scrutiny and examination by the Court which does not amount to enabling the Court to substitute its own mind for that of the executive. Jilani's case seems only to have given a fuller scope for examining the materials and is only meant to be a safety valve against gross misuse of the special measures. Rezaul Karj.m on behalf of Sk. Mujibur Rahman, Vs. Government of East Pakistan (1967)19 DLR 830.

 

S.3(2)(X): Existence of reasonable grounds essential.

Reading clause (x) of section 3(2), the conclusion to be reached is that to gain protection for any action thereunder, the existence of reasonable grounds is essential, and a mere declaration of satisfaction is not sufficient. Malik Gholam Jilani Vs. The Govt. of W. P., (1967) 19 DLR (SC) 403.

 

S. 3(2), cl. (xc) : As amended by Ordinance II of 1968. Reasonable grounds for detention still the' requirement even after the Amendment. Govt. of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri, (1969) 21 DLR (SC) 1.

 

—S. 3 (2) : Rule 204 is referable to clause (xc) of section 3(2) of the Defence of Pakistan Ordinance.

Clause (xc) of sub-section (2) of section 3 of the Defence of Pakistan Ordinance (as it stands after the amendment of 1968) deals separately with temporary detention upon mere suspicion but upon "reasonable grounds". Rule 32 of the Defence of Pakistan Rules is now relatablc to clause (xc) where still the detention must be upon grounds appearing to the detaining authority to be reasonable. Govt. of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri, (1969)21 DLR (SC) 1.

 

—S. 3(2) clause (x) : It is a misconception to think that either under the Defence of Pakistan Ordinance or the Rules framed thereunder, any arbitrary, unguided or naked power has been given to the said authority.

The amendment of clause (x) of the Defence of Pakistan Ordinance has been an exercise in futility. The splitting up of the provisions has in no way affected the reasons given by this Court in Ghularit,-Jilani's case. Thus both under clausc(x) of sub­section (2) of section 3 of the Ordinance and rule 32 of the Rules, the duty cast upon the authority empowered to detain is to apply its mind to the particular matters mentioned therein. Until such opinion is formed by the honest application of the mind of the detaining authority the jurisdiction to make' the order of detention cannot arise. Government of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri, (1969) 21 DLR(SC) 3.

 

—S. 15 : Requirement of section 15 to be kept before itself by the detaining authority-— Reasonableness of action of the authority a necessary ingredient. Government of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri (1969)21 DLR(SC) 3.

 

S. 16(1),: Order of detention must be within the limits of the law prescribed. Nurur Rahman Vs.. llatem All Khan, (1968) 20 DLR 1088.

 

—S. 32(I)(b) : Detenue's transfer from the jurisdiction of the detaining authority after the order of detention, if affects the validity of the order.

The order having been passed at a time when detenu was within the jurisdiction of the detaining authority, the mere fact that subsequently the detenu was removed from the jurisdiction of the detaining authority did not affect the validity or force of the order. Order of detention for indefinite period—Does not require any fresh order for detention. Where the order of detention is a self-contained order under which the detenu has been detained indefinitely no fresh or further order is necessary to continue the detention. In such a circumstance an intimation that the Government has reviewed the case of the detenu whereby it has been decided that he should continue in detention, is^not an order whereby the detenu has been detained. Manik Lai Swarnakar Vs. Govt. of East Pakistan, (1969) 21DLR 235.

 

—Smuggling of fish and currency across the border is a prejudicial act.

Act of smuggling indicates that the persons engaged in it has opened a linc of communication with the enemy across the border and this in itself being a matter of grave danger to the security and public safety of the country, assumes ominous significance which justifies detention. Manik Lai 'Swarnakar Vs. Govt. of East Pakistan (1969) 21 DLR 235.

 

1892

DEFENCE OF PAKISTAN RULES, 1965

Citation: (1967) 19 DLR 829, (1967) 19 DLR 830, (1967) 19 DLR(SC) 403, (1968) 20 DLR 1087, (1969) 21 DLR 503, (1969) 21 DLR 249, (1968) 20 DLR 10, (1969) 21 DLR 169, (1969) 21 DLR 348, (1969) 21 DLR 519, (1969) 21 DLR 828, (1967) 19 DLR 830, (1967) 19 DLR 748, (

Subject: DEFENCE OF PAKISTAN

Delivery Date: 2018-10-01

DEFENCE  OF  PAKISTAN  RULES, 1965

 

Rule 31(I)(b) : Provisions of section 15 of Defence of Pakistan Ordinance does not in any way affect the action taken by the Government under rule 31(I)(b) of the Defence of Pakistan Rules in fit and proper cases. Rezaul Malik on behalf of Sk. Mujibur Rahman Vs. Government of East Pakistan, (1967) 19 DLR 829.

 

R. 32 : Detaining authority competent to pass order of further detention if it is reasonably satisfied that the detenu is likely to indulge in prejudicial activities. In all cases where a person is likely to act prejudicially a detention order can be made, so long as the officer is satisfied that he is likely to so act. Rezaul Malik on behalf of Sk. Majibur Rahman Vs. Govt. of East Pakistan, (1967) 19 DLR 830.

 

—-Apprehension and detention under the rule—Satisfaction of the detaining authority that it is necessary to make the order.

This rule (i.e., Rule 32) requires a stronger ground for action than mere suspicion, however reasonable. For the making of an order of detention of any person, it is necessary that the .detaining authority should be satisfied that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner; only so can the word "satisfied" be construed. Malik Gholam Jilani Vs. Govt. of West Pakistan, (1967) 19 DLR(SC) 403.

 

—For detention reasonable grounds must exist—Authority's satisfaction as to the existence of reasonable grounds is not immune from the judicial review before a court of law which need be satisfied as to the sufficiency and reasonableness of such grounds—Public right of criticism of the Government—its limit. Provision for restraint upon personal liberty which is a fundamental right of citizens, the conclusion is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient.

 

"Satisfaction" of the detaining authority acting under rule 32 of the Defence of Pakistan Rules must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. Actions by the authorities under Rule 32 are susceptible to judicial review, subject to the right of the State to claim privilege in respect of secret information and Court's power to hold proceedings in camera. The grounds or materials on which detaining authority satisfied itself of the necessity of detention are open to judicial review and mere subjective satisfaction of the detaining authority would not suffice for lending validity to the detention order. The Court itself has to be satisfied on the point as to sufficiency and reasonableness of the grounds that formed the basis of the order. In a Democratic State the citizens have a right to criticise the Government measures and its activities, but they cannot use this as a licence to bring the government into hatred or contempt or to create a law and order situation or to do any other prejudicial act. Nurur Rahman and ors. Vs. Hatem Ali Khan and ors., (1968) 20 DLR 1087.

 

—Secret information obtained in the ordinary course of duty and duly authenticated may constitute sufficient materials for making a detention order. In support of the allegation brought against the detcnue, Government produced before the High Court some authenticated secret report. It was contended that such copies of the statement produced by the Government have got no evidentiary value to be treated as a material for consideration.

 

Held : That the right of the State to claim privileges in respect of secret information can never be denied. Such right is also acknowledged under section 125 of the Evidence Act, and a Police Officer cannot be compelled to say where he has got any information as to the commission of an offence.

The official reports coming ordinarily in the course of official duty from the archives of the Government kept in the Special Branch of the Police and duly authenticated by the Superintendent of Police are worth consideration whether they constitute sufficient materials for making on order under Rule 32 of the Defence of Pakistan Rules, 1965. MA. Aziz on behalf of KM. Obaidur Rahman Vs. Province of East Pakistan, (1969) 21 DLR 503.

 

Rule 32—Speeches which come within the mischief of the rule.

The detenu said, "The subscription for war is being levied on the land of burial grounds also. Today the Muslims are paying the levy by selling their lands. Today ten lacs of people arc dying on streets due to hunger. Today there is economic problem, unemployment problem—there is no work for the labourers. Today there is work for donkey also in West Pakistan. Todays a donkey is getting work in West Pakistan whereas there is no work for man in East Pakistan. The speech further contained the insinuation that after having industrialised West Pakistan the Government felt that there was no scope for industrialising East Pakistan".

Held : This speech may be regarded as of a highly inflammatory nature and apt to create a serious law and order sutuation leading to the destruction of peace and tranquility of East Pakistan. This speech alone may be considered to furjiish a reasonable basis for the apprehensions of the authority as mentioned in the various impugned orders of detention.

 

"18 years have passed whether we will be able to live like a man...Teachers are not getting their pays. Students are not getting employment after passing examinations. Peasants are not getting proper prices of their product....Levy has been imposed....Levy has also been imposed on graveyard....There is deficit of food in East Pakistan......We are to know about this disparity of 18 years and to end it. Good books which are imported from India to East Pakistan are stopped....You may have the fate of Soekarno if you do not carry on properly."

 

Held : This speech too is designed to rouse the feelings of the people against the Government and gives a clear indication that the President of Pakistan may be found to go into wilderness in the same manner as President Soekarno of Indonesia had been made to quit. This speech also contains the germs of bad blood between the people of two wings of Pakistan. The detenu addressed "Momen and Ayub" and said, "you make new jails ready.....Exploitation cannot contirtue for long. Many a man like you have done this sort of madness in the past. When the movement for autonomy was launched in this country this sort of madness was shown."

 

The speech -also appears to contain an insinuation that Sk. Mujibur Rahman is being harassed by being put under detention for the sole reason that he wanted 'economic emancipation of five and half crores of Bengalees nay ten crores of people.

 

Held : Reading the speech as a whole it seems that the detenu threatened to create a law and order situation for which he warned that new jails should be made ready. A substantial part of the detenu's criticism against the Government and the people of West Pakistan can hardly be regarded as fair criticism. The intention of the detenu as disclosed in his speeches was clearly to malign the Government for all omissions and commissions, real or supposed so a to create a serious law and order situation for Government. It is not unreasonable to think that such a situation would inevitably disturb the peace and tranquility of East Pakistan and was further likely to culminate in a situation which was fraught with grave risks to Pakistan's security and to maintenance of supplies and services essential to the life of the community. Once hatred is created and feelings ate roused it is difficult to say where it will end. Syeda Zohra Khatoon Vs. Province of E.P., (1969) 21 DLR 249,

 

Detaining authority's power to take note of activities beyond its jurisdiction.

It is wrong to say that the aulhority passing the order of detention cannot travel outside the jurisdiction so far as the reports of activities of the detenu are concerned. Therefore the Deputy Commissioner of Dacca who has passed the order of detention (in the present case) could certainly take into consideration the speeches detenu delivered in .districts other than Dacca. Syeda 7,ohra Khatoon Vs. Province of East Pakistan, (1969) 21 DLR 249.

 

R. 32(I)(b) : Detention order, when should not be made.

It may be safely taken that in making the previous order of detention as early as 29.6.66, those materials were taken into consideration by the detaining authority. So in fairness those activities for which this detenu had already suffered detention cannot be taken as affording reasonable basis for further detention..

When a specific case has been started in relation to the alleged activity of the detenu on a certain date the same activity should not in fairness be taken as a reasonable basis for making an order of detention. Shahidul Hoque Vs. Govt. of East Pak., (1968) 20 DLR 10Q5.

 

—Unfriendly feeling towards a particular class by the detenu cannot be said to be prejudicial as envisaged by Rule 32.

It is f'act that there is an undertone of unfriendly feeling to ards the West Pakistanis who predominated in the administration of the country. .But the indication of such unfriendly feeling towards a particular case of West Pakistanis does not in our opinion lead a person to think that the detenu has acted or is likely to act in a manner prejudicial to the matters mentioned in the impugned order of detention. Expression of opinion does not call for any action under the D.P.R. unless such opinion tends to disturb the peace and tranquility and endanger law and order. As long as the law of the land permits opposition activities and some amount of freedom of thinking and expression, mere expression of opinion, however, much unpalatable it may be to the Government of the day docs not, in our opinion, call any action under a special law like the Defence of Pakistan Rules unless such opinion tends to disturb the peace and tranquility of any region, or create a law and order situation or endanger the maintenance of essential supplies and services. Rezauddin Ahmed on behalf of the detenu Abdul Momen Vs. Deputy Commissioner of Dacca, (1969) 21 DLR 169.

 

Rule 32(l)(b)—Detention in the present case held lawful.

At a meeting held in the Iqbal Hall on 28.8.68 the detenu along with nine participants, discussed the following matters :

 

"The workers throughout the Province could enlighten the people in their respective jurisdiction on the six point programme of Awarni League. The workers should also in course of their contact with the people impress upon them that the Agartala conspiracy case is nothing but a hoax and its trial is a parody of legal proceedings. The story of the conspiracy was but a cooked up one, and this point should also be explained, to the people by the workers in course of their contact with them.; The meeting felt it necessary to change the strategy for movement in the future as there was no scope for any constitutional movement by observing 'Day' on particular issue as, in view of the alleged repressive policy of the Government, there was no scope for any constitutional movement."

 

Held : Two things appear prominent in the aforesaid proceeding namely, (I) that a sinister movement was started after due deliberation to undermine the confidence of the people in the proceeding of a legally constituted Judicial Tribunal in order to make "the decision of the tribunal still born; and (2) that the meeting definitely decided "to change the strategy for movement in the future as there was no scope for any constitutional movement by observing "Day" by particular issue. 'This 'was a definite indication to resort to unconstitutional methods and furnishes a reasonable basis for the dclcntion of the detenu. Sheikh Mohammad Musa on behalf of the detenu. Sheikh Sahidul Islam Vs. Government of East Pakistan, (1969) 21 DLR 348.

 

—Detention, order bearing names of detenu' and his father correctly—Minor error in address and omission of sur-names in the order cannot be taken as' misleading, Detenu deliberately making speeches casting aspersions and insinuations with a view to,bring the Constitution and the elected Head of State to haired and contempt—under circumstances, the Deputy Commissioner competent in making preventive dclcntion order. Sheikh Fazlul Karim Vs. Province ojEast Pakistan, (1969) 21 DLR 519.

 

—Grounds for detention under the Defence of Pakistan Rules and that under the East Pakistan Public Safety Ordinance. No grounds for detention ,is required to be communicated to the detenu under rule 32 of the Defence of Pakistan Rules nor is there any prescribed limit as to the period of detention, whereas, under the Public Safety Ordinance it is an imperative necessity to communicate to the detenu the grounds for detention along with the detention order, so that, the detenu may make an effective representation against the detention. This naturally presupposes that the grounds furnished shall not be vague, indefinite or uncertain. Asit Kumar Swarnaker Vs. Govt. ofEasl.Pak,, (1969) 21 DLR 828.

 

—S. 32(2)(b) : Detaining' authority bound to place materials to satisfy the Court that there was reasonable grounds' to .pass .the order, of detention, Abdulla, J. (Contra)—The whole purport of the speeches delivered by the detenu at different times was not to create hatred or contempt either against the West Pakistan or the Government but to point out the acute need of full provincial autonomy for Pakistan in the background of the experience of the last war. It is true that the language is often emphatic but it is nothing beyond what occurs in ever}'political speech advocating particular causes. On a dispassionate examination of the materials three conclusions arise : Firstly the materials show that the detenu is a prominent political leader and president of a political party-in-opposition. The detenu in such capacity has criticised the policy of the Government whenever the occasion arose and after the September War had started an extensive campaign to mobilise public opinion in favour of the six-point programme which aims at giving full provincial autonomy to. the Province. There is no incitement to violence in any of the speeches. Considering all. the circumstances it cannot be said mat the detcnue could be,found to have committed or likely to commit any prejudicial act as defined in the D.P.R. and as sucft the order under rule 32 D.P.R.. passed by the Deputy Commissioner, Dacca on 8.5.66 was without lawful authority as also subsequent orders continuing the detention upto 3.6.67.

 

The detaining authority has placed before us no materials from which it can be adjudicated whether the detaining authority had reasonable grounds for making the order. It has not been shown how the Deputy Commissioner who passed the order could consider all those materials.which relate to a period when he might not have been the Deputy Commissioner of Dacca and when the incidents relate to areas outside his jurisdiction. The wording of the Ordinance and of the Rules enable the authorities to pass an order if they are satisfied on materials that the detenu is likely to act in a prejudicial manner. Hence it cannot be said that successive orders cannot in law be made. Rezaul Malik on behalf of detenu Sk. Mujibur Rahman Vs. Government of East Pakistan, (1967) 19 DLR 830.

 

—Smuggling is not an offence which falls within the mischief of rule 32(2){b).

It appeal's that the State detained the detenu under clause (b) sub-section (2) of section 32 of the Defence of Pakistan Ordinance, 1965 on the ground that he was a member of a gang of smugglers; the order of detention against him was in the following terms

"The exercise of the power given'in section 32(1). of the Defence of Pakistan Ordinance, -1965 I am satisfied that with a view lo preventing Abdur Razzak Dalai from acting in any matter prejudicial to the security, the public safety, the maintenance of public order and maintenance of peaceful condition in Khulna district,.it'.is necessary that he be detained. in Khuina Jai! under clause (b) of sub-section (!) of section 32 of the Defence of Pakistan Ordinance, 1965 until further order from the Government."

 

Held : The allegations being that he. is a member of a gang of smugglers, it is difficult to follow as to how his activities could be prejudicial to the security, public safety ; maintenance of public order and maintenance of peaceful condition in Khulna District/ Alhaj Md, Abdur Rahman Vs. Govt. of East Pakistan, (1967) 19 DLR 748.

 

—R, 41(6) ; Prejudicial Act—A speech does not become prejudicial unless it tends £o excite disaffection, hatred or contempt towards government or promotes feelings of enmity and hatred between different classes of citizens or causes fear or alarm to public—right of free criticism, It does not appear from a reading of the speech as a whole that It was either intended or was likely to excite disaffection, hatred or contempt towards the Government or to promote feelings of enmity and hatred between different classes of citizens or to cause fear or alarm Sp the public or to any section of the public and consequently it cannot be construed as a prejudicial act the doing of which is an offence punishable under rule 47 of the Defence of Pakistan Rules. Democracy functions best in an atmosphere of free and frank discussion and if Pakistan was claimed to be- a democratic country at the time when the speech was delivered, the right of the people to express themselves freely and frankly and, if need be, strongly, and even bitterly against what may have been supposed to be lapses on the part of the Government, could not be abridged so long as such expression did not degenerate into mere abuse intended or calculated to rouse the emotions-of the people to a pitch wherefrom they might be tempted to take recourse to vioicnce or to create chaos in the country or to disrupt the normal life of the people. The distinction between disapprobation of Government measures and abuse of government may, at times, appear 'to be thin, but it is not illusory. In applying the law of sedition to an impugned writing or speech, the Superior Courts of the country have consistently leaned towards putting a construction thereon which is in conformity with the changes effected.by the passage of time in the political consciousness and the mental outlook of the people and in. their ability to discern between appeal to passion and appeal to reason. Shaikh Fazlul Hague Vs. The Slate, (1970) 22 DLR 136.

 

R. 41(6)(c) & (.b) : Prejudicial act-When an act becomes prejudicial. Tits Pabna Bar Association in a meeting held on 16.3.67 adopted the following resolutions:

 

"1. Discussed about the serious and alarming situation arising out of death caused by taking poisonous 'Bhutta' supplied to the people through various radon shops in and outside the Pabna town.

 

2. This meeting takes serious view of this and severely condemns inhumanly irresponsible action of the Government in supplying poisonous food materials through rations and demands of the Government that immediate and suitable compensation be given to the family members of the persons who have died on taking this poisonous Bhutta and wheat.

 

3.   This  meeting  further, demands' of the Government immediate suitable action against those who are responsible for supplying of this poisonous foodgrains.

 

4.    This    meeting    severely    condemns indiscriminate firing on the members of the public by the Central Parliamentary Secretary of Food Mr. S.A.H, Zaidi, resulting in the deaths of•-,severe! persons and injuries on some and demands an immediate judicial enquiry by tribunal headed by a High   Court   Judge   and   demands   adequate compensation for the members of the family of the victims and condemns this indiscriminate and unwarranted firing and serious action should be taken against those persons responsible for this situation.

 

5. All the members on behalf of the Bar to wait upon the District authority, to apprise the real situation and for necessary action,"

 

Held : The resolution when read as a whole conveys the impression that, the members of the Bar had no other intention but to apprise the Government about the seriousness of the situation so that necessary actions may be taken speedily. Therefore, the resolution cannot be construed as prejudicial act within the meaning of clauses (c) and (h) of rule 41(6) of the Defence of Pakistan Rules and as such, conviction and sentence passed under rule 47 cannot be sustained. Mansur All Vs. The. Stale, (1970) 22 DLR 385.

 

—Rules 47(5) and 41(6) ': Freedom of speech to what extent can be curbed.

As Song as the law of the land permits oppositional activities and some amount of freedom of thinking and expressions, mere expression of opinion, however, much unpalatable it may be to the Government, docs not make the speaker liable for any action under the Defence of Pakistan Rules, unless such opinion tends to disturb public peace of the region or create a law and order situation in the country or excite disaffection towards the government established' by law or cause fear and alarm to the public. Sheikh Mujibur Rahman Vs. The State, (1969) 21 DLR 810.

 

—R. 189 .: Order of detention must foe served- on detenu—Omission to do so, highly prejudicial.

Under Role 189 of the Defence of Pakistan Rules, 1965, it is. expressly provided that every authority, officer or person who makes an order in pursuance of any of these rules, shall in the case of an order affecting an individual person, serve or cause the order to be served on that person personally by delivering or tendering to him the order. In the instant case the liberty of a citizen was curbed, but the fact remains that he was not allowed to know the reasons why his liberty was curbed. It is unfortunate that orders are made without serving the order of his detention as distinctly provided in rules and it is highly deplorable. Kazi Abdul Gani Vs. E. Pakistan, (1968) 20 DLR 278.

 

— Besides, there are other statements regarding the activities of this delenuc in the.affairs of the Has" Pakistan Students Union ; but we have already seen beyond-activities as a worker of the Students Union the opposite parties failed to produce any materials to lead an ordinary sensible man to think and be satisfied that the acts of this detenu amounted to prejudicial activities at any period. Kazi Abdul Gani Vs. Govt. of East Pak., (1968) 20 DLR 278.

 

R. 204 : Rule 204 is referable to clause (xc) of section 3(2) of the Defence of Pakistan Ordinance. Clausc(xc) of sub-section (2) of section 3 of the Defence of Pakistan Ordinance (as it stands after the amendment of 1968) deals separately with temporary detention upon mere suspicion but upon "reasonable grounds". Rule 32 of the Defence of Pakistan Rules is now relatable to amended 'clause (x) with the explanation and rule 204 is relatable to clause (xc) where stiil the detention must be upon grounds appearing to the detaining authority to be reasonable. Government of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri, (1969) 2.1 DLR (SC) 1.

 

—Power regarding arrest exercisabSe when suspicion is based on reasonable grounds.

Cornelius, C.J. — The power of a police officer or other empowered officer given by tale 204 is -dependent upon suspicion based on reasonable-grounds that the person in question has performed or •is about to perform a prejudicial act. A state of direct knowledge, or inferential conviction, or reasonable belief; would be at least as complete, a justification as reasonable suspicion. Malik Gholam Jilani Vs. The Govt. of West Pakistan, (1967) 19 DLR (SC) 403.

 

R,  206(b)  read  with  rule  42(a)  :   Bail can   be   refused- when' opposed by   the prosecution only  in      respect of contravention  of rule  notified   under   rule In case of an allegation of contravention of a rule under the Defence of Pakistan Ordinance, 1965, or orders made thereunder, whenever there is an opposition by the prosecution -to the granting of bail, the restriction imposed by clause (b) of rule 206 would come into operation only in respect of contravention of rules and orders which have been notified under rule 206(b). The bar under rule 206(b) would not apply to any other case, when the fact is that rale 42(a) has not been notified under rule 206. Khawja Mohiuddin vs. The State, (1967) 19 DLR 46.

 

— Detention of a detenu — Material particulars for -detention- lacking — Detention   illegal.

The question is whether the detaining authorities had sufficient materials before them to justify an inference and belief that the detenu was in any way connected within publication or attempted publication of the said leaflet. On behalf of the detenu Nurul Islam it has been stated that the detenu was merely a worker of East Pakistan Awami League. Furthermore nowhere in the affidavit in opposition has it been asserted that the detenu was, at any point of time, the office-secretary of the Awami League Organisation. It has been further urged on behalf of the detenu that there were more than one Nurul Islam in the Awami League Organisation. It is therefore difficult to hold that there was reasonable basis for the belief or 'inference that it was the detenu Nurul Islam who was the publisher or proposed publisher of the said leaflet. Amena Begum on behalf of the detenu Nurul Islam Vs. Govt. of East Pakistan (1968) 20 DLR 751.

 

-Detention    order—Jurisdiction  'to pass,

Detention order in regard to a detenu passed by a Deputy Commissioner of one district while the detenue is detained in another district is illegal, the detenu being outside his (territorial) jurisdiction but if the detenu is brought back within the jurisdiction of the Deputy Commissioner passing the order of detention and he passes a fresh order of detention and the fact that he passed an illegal order of detention while the detenu was beyond his jurisdiction will not affect his subsequent order of detention when he is brought back to his jurisdiction. Syeda Zohra Khatoon Vs. Province t>f East Pakistan, (1969) 21 DLR 249.

 

—Detention Order—Fresh order of detention and an order -of'extension of previous detention explained.

The detenu was detained under Rule 32 of the Defence of Pakistan Rules. With the lifting,of emergency the life of the Ordinance expired and the detenu was released forthwith and at the same time the detenue was re-arrested from outside the Jail under the East Pakistan Public Safety Ordinance, 1958. It was contended that with the lifting of emergency further detention was illegal and there being a gap of few hours between his release and re-arrest this was nothing but extension of the previous detention which is illegal.

Held : The order of detention under the East Pakistan Public Safety Ordinance was a fresh order of detention and that being so, it did not matter at all if there was a gap of a few hours between the moment of lifting of emergency and the moment of re-arrest of the detenu from outside the Jail inas­much as the fresh order would take effect from the moment of re-arrest. In this context, there is a material distinction between a fresh order of detention and an order of extension of detention. Asit Kumar Swarnaker Vs. Govt. of East Pakistan, (1969) 21 DLR 828.

 

DISPLACED   PERSONS   (LAND SETTLEMENT) ACT  (XLVII of 1958)

S. 29, rule 9 : Proceedings-started with the sanction of the competent authority ended with the discharge of the accused — Fresh proceedings on the same allegations not maintainable without fresh sanction against the same accused, Mohammad Sadiq & others Vs.The State, (1969) 21 DLR (SC) 342.

DOWRY PROHIBITION ACT (XXXV of 1980)

S. 2—'Dowry'—Definition of the word as given analysed—Property to be given or agreed to be given as consideration for marriage in order to call it a do wry,

There has to be a combination of many elements before the concept of 'dowry' takes its full meaning. Firstly, to be 'dowry it has to be any property or valuable security; it has to be given or agreed to be given either directly or indirectly by the parties mentioned in clauses (a) and (b); thirdly, it has to be given or agreed to be given at the time of marriage or at any time before or after the marriage and lastly, it must be as a consideration for the marriage of the parties. What stands out prominently is that the property or valuable security is to be given or agreed to be given as consideration for the marriage- of the parties which then becomes a 'dowry.' Mihir Lai Saha Poddar Vs. Zhunu Rani {1985) 37 DLR 227.

SECTION 2, 4 & 6^—Whether demand of Tk. 10,000/- by the husband as a condition of her being taken to the husband's house,is dowry. Expression 'dowry' occurring in section 2 of the Act—Meaning of—Expression "marriage" occurring in section 2—meaning of—Marriage is not only a ceremony but also creator of a status—Demanding money or Valuable security in consideration for money amounts to dowy—Expression "in consideration for the marriage"—Meaning-Interpretation of legislative intent. Rezaul Karim Vs. Mst. Taslima Begum (1988) 40 DLR 360.

1893

DETENTION

Citation: (1978) 30 DLR 200.

Subject: DETENTION

Delivery Date: 2018-10-02

DETENTION

 

Grounds of detention—Mere inclusion of a bad ground will not render the entire order illegal. Anwar Ahmed Vs. Qovt. of Bangladesh (1978) 30 DLR 200.

1894

Dramatii Performance Act (XIX of 1876)

Citation: (1964) 16 DLR (Dae) 321,

Subject: Dramatii Performance

Delivery Date: 2018-10-01

Dramatii Performance   Act  

(XIX   of 1876)

 

S.3 : Dramatic performance held in a private house not within the mischief of the Law. Section 3 of the Act authorities prohibition of dramatic performance whenever the Provincial Govt. is of opinion that any play, pantomime or other drama performed or about to be performed in a public place is of the type described in clauses (a) (b) or (c) thereof. But that power is available or exercisable only when the venue of the objectionable dramatic reference happens to be a place. A performance held in a private house where spectators were entertained without any charge is not within the mischief of the law. Inu Mandal Vs. State, (1964) 16 DLR (Dae) 321.

 

Sections 6 and 10 Conviction by a Magistrate other than a District Magistrate—Illegal.

 

Sections 6 and 10 of the Dramatic Performance Act make the culprits contemplated therein liable to certain punishments on their conviction before a "Magistrate" whicih term, according to section ,;, 2 of the Act, means "a District Magistrate." The only authority competent to hold a trial under the said sections or either of them, therefore, is the District Magistrate. Therefore a trial held by a Magistrate other than the District Magistrate is without jurisdiction. Inu Mondal Vs. State, (1964) 16 DLR 321.

 

1895

DRUG CONTROL ORDINANCE, (VIII OF 1982)

Citation: (1985) 37 DLR (AD) 135

Subject: DRUG CONTROL

Delivery Date: 2018-10-01

DRUG  CONTROL ORDINANCE, (VIII OF   1982)

 

S.    22, clauses (b) and (e)

Offences which fall within the ambit of the Drug Control Ordinance, 1982 are to be tried by the Special Tribunal set up under that Ordinance and a Court of Magistrate is incompetent to take cognizance and try such offences. Kalipada Saha Vs. The State (1985) 37 DLR (AD) 135.